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PUBLISHERS OF BOOKS FOIO 

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INTERNATIONAL 
MINING LAW 



BY 

THEO. F. VAN WAGENEN, E. M. 

PRESIDENT AND GENERAL MANAGER 

THE AMERICAN POTASH CO., DENVER, COLO. 

MEMBER AMERICAN MINING CONGRESS 



First Edition 



McGRAW-HILL BOOK COMPANY, Inc. 

239 WEST 39TH STREET. NEW YORK 



LONDON: HILL PUBLISHING CO., Ltd. 

6 & 8 BOUVERIE ST., E. C. 

1918 



THAIS' 



Copyright, 1918, by the 
McGraw-Hill Book Company, Inc. 



\ 



/ 



JUL 18 1918 
§>CLA501212 



T H E Ql Jl F 1, E PRESS YORK PA 



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PREFACE 

( 
Practically all the raw material in this volume was collected 

primarily for the purpose of enabling the author to form an 
intelligent opinion as to whether the American Federal Mining 
Law was in need of revision, and if so, in what respects. To 
accomplish this two kinds of information on the subject appeared 
to be necessary. First, a knowledge of the mining laws of other 
countries, for the purpose of being able to compare them with 
our own and to note the points of difference; and second, the 
statistics of production in the principal metal-mining regions 
of the world, so as to be in a position to judge of the comparative 
worth of each law by the results obtained under it. As the 
investigation advanced it was found desirable as well as interest- 
ing to take note of the salient features of the history of the 
industry in each principal field. This naturally led to an inquiry 
into ancient and repealed mining legislation and customs, the 
better to understand those now in force; which, in its turn, called 
for a study of the beginnings, rise and growth of the occupation 
of mining. And now, in putting together the results obtained, 
the steps taken are naturally reversed in the act of publication. 
It is hoped that the arrangement adopted will prove a suitable 
one from the point of view of the reader. 

Mining law is a broad subject. In the digests of laws given, 
with a view to confining the investigation within reasonable 
limits, the attempt has been made to give only those parts of 
each which referred to metal mining, omitting wherever possible 
those having to do with coal, iron, and the non-metallic sub- 
stances. Naturally the statistical tables have been prepared 
on the same plan. 

A considerable number of the laws abstracted were found to 
be of only moderate assistance to the inquiry; either because of 
their comparative antiquity or crudity, or for the reason that 



vi • PREFACE 

they had been framed to apply to special or unusual conditions, 
or consisted mainly of rules and regulations governing the 
activities of subject or half civilized people. Yet even in these 
there were generally found features of interest, and consequently 
all have been given in Chapter 12, along with others — like that 
of Japan — that are quite up to date, and well worth the considera- 
tion of the student. 

Theo. F. Van Wagenen. 
Denver, Colorado. 
May, 1918. 



CONTENDS 



Page 

Preface v 

CHAPTER I 

History of Mining and of Mining Law Previous to the Discovery 
of America 1 

CHAPTER II 

History of Mining and of Mining Law Since the Discovery of 
America 9 

CHAPTER III 
Ancient German Mining Laws and Customs 17 

CHAPTER IV 
Ancient Spanish Mining Laws and Customs 21 

CHAPTER V 
Mexican Mining Decrees from 1821 to 1883 44 

CHAPTER VI 

The Latin- American System of Mining Law. Digests of the Min- 
ing Laws of Argentina, Bolivia, Brazil, Chile, Colombia, Costa 
Rica, Cuba, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, 
Panama, Peru, Uruguay and Venezuela. Results of the System. 
Statistics of Metal Production from 1851 to 1916 47 

CHAPTER VII 

The American System of Mining Law. Digest of the U. S. Fed- 
eral Mining Law. Digest of the Mining Law of Texas. Results 
of the System. Statistics of Production from 1851 to 1916. . . 98 

vii 



viii CONTENTS 

CHAPTER VIII 

Page 

The British Australasian System of Mining Law. Digests of 
the Mining Laws of New South Wales, New Zealand, Queens- 
land, South Australia, Tasmania, Victoria, and West Australia. 
Results of the System. Statistics of Production from 1851 
to 1916 115 

CHAPTER IX 

The Canadian System of Mining Law. Digests of the Mining 
Laws of British Columbia, Alberta, New Brunswick, Newfound- 
land, Nova Scotia, Northwest Territory, Manitoba, Ontario, 
Quebec, Saskatchewan and Yukon Territory. Results of the 
System. Statistics of Production from 1858 to 19^. . ,,', . . 156 

CHAPTER X 

The South African System of Mining Laws. Digests of the 
Mining Laws of the Cape Province, Natal, Orangia, Rhodesia, 
and the Transvaal. Results of the System. Statistics of Pro- 
duction from 1879 to 1916 179 

CHAPTER XI 

The European Systems of Mining Laws. Digests of the Mining 
Laws of Austria-Hungary, France, Germany, Great" Britain, 
Italy, Norway, Portugal, Russia, Spain, Sweden, Turkey, and 
Serbia. Results of the Systems. Statistics of Production from 
1901 to 1913 ' 212 

CHAPTER XII 

Miscellaneous Mining Laws. Digests of the Mining Laws of 
British Guiana, British India, Ceylon, China, Congo Free State, 
Cyprus, Dutch Guiana, 'Egypt, Federated Malay States, French 
Guiana, Gold Coast"and Ashanti, Haiti, Japan, Mysore, Nigeria, 
Siam and British North Borneo . 243 

CHAPTER XIII 
The Prospector 286 

CHAPTER XIV 

EXTRALATERAL RlGHTS 291 



CONTENTS ix 

CHAPTER XV 

Page 
Discovery of Ore as a Prerequisite to k Valid Location .... 300 

CHAPTER XVI 

Leasehold vs. Fee Simple Title 304 

CHAPTER XVII 

Free Prospecting vs. Licensed Prospecting 307 

CHAPTER XVIII 
Prospecting Areas 311 

CHAPTER XIX 
Defects and Deficiencies of the American Law 313 

CHAPTER XX 
Miscellaneous Historical Notes 318 

CHAPTER XXI 
Conclusion 323 

Index 329 



INTERNATIONAL MINING LAW 



CHAPTER I 

History of Mining and of Mining Law Previous to the 
Discovery of America 

Mining law, as might be expected, has been a development 
from the line of activity with which it deals. It could not exist 
until the industry itself came into being. Hence, a knowledge of 
the origins of mining as a business is necessary for a clear com- 
prehension of the fundamental peculiarities of mining law. 

There was a time (and not so long ago) when all metalliferous 
deposits were regarded as the personal property of the feudal lord 
of the region in which they were found, no matter what rights he 
may have granted for the use of the surface. This assumed sov- 
ereignty persists in many countries to-day in regard to gold and 
silver, because when coined they become money, and the manu- 
facture of money has always been considered a State monopoly; 
and in some countries it persists in regard to all the other desir- 
able metals and minerals. When the will of the local sovereign 
was the only law in existence, there was really no law, as we 
understand the term to-day, for there was no concensus of public 
opinion behind his decrees. When sovereign rights began to 
suffer curtailment in favor of those of the community and in- 
dividual, these irresponsible edicts were gradually superseded by 
laws which gave greater recognition to the rights of discoverers 
and producers of desirable mineral substances. 

Again, it is only a very few years — as historical time goes — 
since the list of the known metals included more than seven, viz., 
gold, silver, mercury, copper, tin, lead and iron. Not until 

1 



2 INTERNATIONAL MINING LAW 

the year 1700 was zinc clearly recognized as an element, and 
although antimony and arsenic were known to be individual 
substances before that date, the metals themselves did not be- 
come articles of commerce until many years after. Fifty years 
ago neither aluminum, nickel, platinum nor bismuth could be 
purchased in the market, nor any of the ferro metals (manganese, 
chromium, molybdenum, tungsten, vanadium and uranium). In 
fact, many of this last list have been produced commercially 
only during recent years. 

Coal mining as an industry is really of very modern origin. 
The production of coal in limited quantities, and for domestic 
use in the immediate vicinity of the mine, began in 1750, but the 
industry was not on its feet until 1820. Coke, although made 
in England as early as 1619, did not become a successful com- 
petitor of charcoal in the manufacture of iron until 1740. 
. So we shall find, as we dig into the subject, that mining law has 
been from the first merely a modification of the common law 
relating to real property; and to understand properly the causes 
that have led to its differentiation into a subject by itself, it is 
necessary to become acquainted with the beginnings of mining. 

Gold, which was probably the first recognized of the metals, has 
been an object of search for at least 8000 years. Yet mining of 
gold as a commercial operation cannot be said to have begun 
before its almost simultaneous discovery in California and Aus- 
tralia less than seventy years ago; for, previous to that momen- 
tous occurrence, the entire gold supply of the world came from 
placer -mines, or from quartz veins yielding visible metal, from 
which it was separated by the crudest processes of hand crushing 
and washing. 

Reducing iron from meteorites was undoubtedly one of man's 
earliest achievements, and in certain regions favored with very 
pure and high grade ores the metal has been in use since the dawn 
of history. But its production in commercial quantities is a mat- 
ter of very recent date, as we shall see. 

Perhaps the earliest organized mining of which there is any 
record was at Laurium in Greece. Here was discovered, at least 



HISTORY OF MINING AND MINING LAWS 3 

as far back as 1000 B.C., very notable deposits of silver-lead- 
zinc ore. The location is on the coast, and it is believed that the 
Phoenicians held and worked the mines for some time. Evi- 
dences of Mycenaean civilization have been found in their imme- 
diate vicinity. There is proof that the mines were actively 
worked by the Greeks between 600 B.C. and 400 B.C., and that 
so much silver was produced that the Athenian state, in whose 
territory they were, became very wealthy. They were owned by 
the Government, which leased them to its citizens on royalty, 
and the actual mining operations were carried on by slave labor. 
The deposits of the Iberian peninsula, which yielded to the 
ancients vast quantities of silver, were being worked by slaves 
under Carthaginian taskmasters as early as 250 B.C., and when 
Rome succeeded to the sovereignty of the country the system 
was continued. 

It is probable, though perhaps it cannot yet be proven, that 
the most ancient metal-mining industry of a more or less organized 
character was that which grew up slowly through the ages at the 
East Indian tin deposits. To understand its importance we must 
recall the fact that copper is the only metal existing in a native 
or pure condition in any quantity in the crust of the earth, and 
accordingly the archaeologists generally find at the beginnings 
of all civilizations a period when implements, ornaments and 
weapons of the metal were used. Succeeding it, and before an 
extensive knowledge of the metallurgy of iron was current, is 
generally found an age of bronze, an alloy composed of copper and 
tin. Tin is never found native, but its principal ore — cassiterite 
— is easily reduced, at a comparatively low temperature, to the 
metallic state. As cassiterite is black or dark brown, and quite 
heavy, it no doubt attracted the attention of men at a very early 
age, and when, by some accident, it was found to yield in abund- 
ance a white metal, which probably was at first mistaken for 
silver, their astonishment must have been great. However it 
came about, at some place and at some time this new white, soft 
metal came into contact with copper tools or weapons, and the 
very useful alloy, bronze, was discovered, which would take and 



4 INTERNATIONAL MINING LAW 

keep an edge under circumstances where copper alone failed to 
do so. 

Unlike gold and silver, tin occurs in payable quantities in only 
a few places in the earth's crust, and nowhere so abundantly as in 
certain parts of the Malayan peninsula and of the islands adjacent 
to it. It exists there in the form of dark and heavy grains in 
alluvial gravel deposits, from which it is easily separated by the 
simplest methods of hydraulic mining. The area of these Asi- 
atic placer regions is very extensive, and the proofs of their exploi- 
tation in very remote ages are abundant There is also no doubt 
that, in the centuries during which the Phoenicians were the 
dominant people of antiquity, a very considerable commerce was 
carried on between Asia and Europe, one of the principal items 
of which was tin. For this useful metal Europe gave silver -in 
exchange, which was scarce in Asia, but abundant around the 
Mediterranean basin. 

The central European mining region, of the Sudetic Alps, that 
broad series of parallel ranges in Bohemia and Moravia connect- 
ing the Carpathians with the Swiss mountains, attracted the 
attention of the Romans when their sway had extended itself 
into that region, during the first century of the present era, but 
their tenancy there was too brief and uncertain to allow them to 
organize an industry except of the most primitive kind on the 
basis of the great mineral wealth that the country contained. 
But when the Empire fell to pieces these regions gradually 
passed into the possession of Teutonic and Teuto-Slavic peoples, 
under whose control mining slowly became a business of some 
standing. In the 8th century there appears to have been con- 
siderable activity there, based mainly upon the production of 
silver, lead and copper. The great salt mines at Wielitzka were 
actively producing in 1040. The Freiburg silver mines were dis- 
covered (or probably re-discovered) sometime between 1100 and 
1200, the Kuttenberg district about 1225, the Przibram lodes in 
1300, the Idria quicksilver mines in 1497, the Clausthal argen- 
tiferous lead veins between 1500 and 1600, and early in the 16th 
century there was a mint at Joachimsthal at which the Joachims- 



HISTORY OF MINING AND MINING LAWS 5 

thaler — the ancestor of the modern dollar — was coined. At 
Iglau in Bohemia, where it is thought that the rich silver veins of 
the vicinity were worked by the Celts perhaps as early as A.D. 500, 
there is extant, in the Town Hall, a code of mining laws dating as 
far back as 1249. These constitute, so far as I have been able to 
ascertain, the first codification of laws relating to the mining 
industry. That they were as yet merely a statement of the rules 
under which the local sovereign permitted the peasantry under 
his control to explore for and to extract ore from landed property 
considered as belonging solely to him, does not detract from their 
interest; for throughout the Russia of to-day similar laws until 
recently prevailed, all the unoccupied land of the Empire, 
besides vast areas of the occupied land, being regarded as the 
personal property of the Czar. It was these central European 
mines that gave to Germany her acknowledged primacy in 
mining knowledge and science in the civilized world, which she 
retained until the occupation became commercialized in the 
United States during the eventful years between 1860 and 1880. 

It was not until 1623 that the Norwegian silver mines at Kongs- 
burg were discovered. About a century later gold mining as an 
industry began in the Urals. 

Copper, as a metal, never seems to have created an excitement 
among the ancients, or even during mediaeval times. This 
was probably due to the fact that it was found abundantly 
enough in the native condition during the copper and bronze 
ages of each people at many places — Sinai, Cyprus, Persia, cen- 
tral and northern Africa, Spain, etc. — so that it was not neces- 
sary to obtain it from its ores. In due time, however, simple 
methods of its reduction from its carbonates, oxides and even 
sulphides were discovered; but by that time the metallurgy of 
iron had become so well developed, and the latter metal proved so 
superior for the manufacture of weapons and tools, that the 
sole demand for the red metal was for ornamentation, for which a 
small annual production was ample. 

Iron first became known as a metal in the form of meteorites, 
and there are astronomers who believe that in primitive human 



6 INTERNATIONAL MINING LAW 

ages the arrival of these visitants from space was more frequent 
than at present, or perhaps more often noticed. However, the 
reduction of the metal from its most common ore — hematite — 
was a simple matter, as soon as the use of fire and the advantages 
of charcoal as a fuel became generally known, and the widespread 
occurrence of this ore was not favorable to the production of any 
particular excitement. With the ancients iron and steel pro- 
duction was never an industry, although it became the occupa- 
tion of numerous individuals in all parts of the human family, 
who, either by accident or through intelligent study, became 
more or less proficient in the production of high-grade steel. In 
the Middle Ages Damascus and Toledo blades had a great vogue, 
as also certain brands of weapons and armor made in India. This 
we now know was due as much to the purity and freedom from 
phosphorus and sulphur of the ores from which these articles were 
made, as to the skill of the makers thereof. Also the fine heating 
qualities of the charcoal used had much to do with the favorable 
outcome, for it is now well known that certain kinds of- wood, 
produced mainly in tropical or semi-tropical regions, will yield a 
charcoal of far higher metallurgical value than others. Fifty 
years ago Swedish charcoal iron and Russian planished iron 
were in great demand for special uses on account of their purity, 
resulting from the clean ore from which they were produced, and 
the fine fuel used. But both have now been supplanted by mod- 
ern steels of many kinds. 

Articles of iron, believed to have been fashioned as early as 
4000 B.C., have been found in the Pyramids. The metal was 
extensively in use among the Assyrians from 2000 B.C. to 600 
B.C., and among the Greeks from 800 B.C. When the Romans 
reached Britain in B.C. 55, they found it in common use among 
the aborigines of the country. During the Middle Ages (5th to 
15th century) knowledge of and demand for the metal steadily 
increased, and by 1350 in Germany the science of heat production 
had reached the point where large iron castings became possible. 
This knowledge and proficiency spread into France and England, 
and when in 1740 the manufacture of good coke became possible 



HISTORY OF MINING AND MINING LAWS 7 

the industry was firmly established^ especially in those places 
where there existed a superior quality of coking coal. It was this 
circumstance that carried the primacy in iron and steel manufac- 
ture to England, whose coke is still the best produced in Europe. 
In 1855 the industry was further advanced in England by the 
invention of the Bessemer converter; and this really marks the 
beginning of the modern art, which therefore is not much more 
than half a century old. 

When bronze was supplanted by iron and steel for the manufac- 
ture of weapons and tools, tin mining languished wherever it had 
previously flourished. For there were few other uses for the 
metal than the production of bells, coins and statuary, which 
called for small quantities only. Hence the Chinese and Malay 
deposits were practically forgotten by the western nations, and 
when the metal was found in payable quantities in Spain, Austria, 
and Cornwall it caused little interest in the mining world. How- 
ever, in 1789 Dutch experimenters of the city of Haarlem appear 
to have taken some first steps in the art of electroplating, about 
which there was much interest on the continent on account of the 
discoveries of Volta and Galvani in the same line. But it was not 
until after Faraday, in 1834, worked out the laws of electrolysis 
that tin plate manufacture became possible commercially, and 
that mining in Cornwall on the tin-bearing lodes that were so 
plentiful there, and that had been known ever since their dis- 
covery by the Phoenicians, attained its greatest days of pros- 
perity, and gave to the Cornish miner the reputation he deserv- 
edly held for so long as a proficient in underground work. 

In 1837 the first English patent describing a method of coating 
iron with zinc was granted, which laid the foundation of an indus- 
try that has since become even more important, for by that time 
the metallurgy of zinc had been fairly well worked out in Belgium 
and Germany, as well as in France. 

The metallic character and properties of lead were well known 
to the Romans, as witness the crude piping made of the metal and 
put to use in many of the houses that have been uncovered in the 
ruins of Pompeii. But there is no evidence of any great prodiic- 

2 



8 INTERNATIONAL MINING LAW 

tion of the metal from even the Laurium mines in Greece, whose 
ores appear to have been worked mainly for their silver contents, 
in the recovery of which the bulk of the lead was volatilized and 
lost. The manufacture of paint, shot and piping are, and always 
have been, the principal uses to which this metal is put. But 
these are modern arts, and lead was in small demand previous to 
the 15th century. 

Mercury also was a metal which the ancients used but little, 
although it was known certainly as early as 300 B.C. being sup- 
posed at first to be a liquid form of silver, from whence its other 
name. The Spanish mines at Almaden were worked in a desul- 
tory way by the Romans, but mainly for the raw ore — cinnabar— 
from which the highly valued pigment vermilion was made. The 
Austrian mercury mines at Idria were not discovered until 1497, 
by which time someone had invented a process of making mirrors 
by coating one side of a sheet of glass with an amalgam of mer- 
cury and tin, in consequence of which a fair demand arose for the 
metal. This art is said to have had its origin in Venice, about 
1300, from which it spread through Germany and France, reach- 
ing England in 1673. Previous to this invention mirrors were 
made of polished metal, either silver or bronze. In 1836 Liebig 
made the first attempt to substitute a silver for a tin amalgam, and 
the art was finally perfected in 1855 by Pettijean in France, where 
it has since attained its highest state of perfection. 



CHAPTER II 

History of Mining and of Mining Law Since the Discovery 

of America 

The general review of the subject in Chapter I shows that min- 
ing is really a very modern industry, and that mining law must of 
necessity be of recent origin. In fact, we may dismiss at once all 
expectations of discovering any more than its beginnings in 
Europe, or any other part of the old world; for, long before it was 
anything more than a haphazard occupation of individuals, the 
feudal system and its theories of land tenure had tied up all the 
land in the older settled parts of the globe, and made operations 
of any kind thereon dependent wholly upon the will of the local 
sovereigns, who promulgated such rules and regulations as they 
saw iit. These naturally were no more what would now be 
called law than were any of the other customs and regulations 
that have always accompanied the practice of human vassalage. 

But upon the discovery of the new world, and the exploration 
of Mexico, Central, and South America, following the conquest 
and occupation by Spain and Portugal, a new era began. The 
stream of precious metal that came across the Atlantic, at first 
from the plunder of Aztec and Peruvian civilization, and later 
from placer deposits, attracted immediate attention, and drew a 
horde of adventurous spirits across the ocean, each with some 
kind of a recommendation from his European sovereign to the 
Viceroy of his nation in New Spain or New Portugal. At first 
these newcomers were easily taken care of. So long as there were 
desirable tracts of land to give away, grants were freely and even 
lavishly made. These gave to the grantees practically sovereign 
rights within their limits, including the native inhabitants as well, 
which held as long as agreed royalties were promptly remitted to 



10 INTERNATIONAL MINING LAW 

the Government. But a time soon came, even in the opening up 
of such a vast new area, when the few outcroppings of mineral 
known to the aborigines had been given away, and prospecting 
became a necessity. Up to this point the mining customs and 
regulations of the old world had simply been transplanted into 
the new, and consisted practically of such laws as were necessary, 
with the aid of the church, to keep the natives and the low-class, 
half-breed populations that had arisen in such a condition of 
poverty and dependence as would enable the land owners to com- 
mand their services at practically no cost above that of food, 
shelter and clothing. The white man from Europe never became 
a prospector or miner. Such work was beneath his dignity. But 
he could induce or compel his subjects to explore, and so through 
offers of reward and threats of punishment many new and rich 
mineral areas were discovered. While this, kind of exploration 
was in progress, difficulties frequently arose on account of the 
competing activity of the followers and subjects of the numerous 
Court favorites who had secured or had been promised grants, 
which in due time made necessary the promulgation of laws 
ostensibly intended for the encouragement of the mining industry, 
but really having for their object the prevention of such compe- 
tition. But again they were no more in spirit than the rules and 
regulations that had preva led in Europe for centuries, modified 
only to such an extent as was made necessary by reason of the 
different character of the subject population and the freer envir- 
onment of a newly opened land. The old world peasant, after 
centuries of oppression and deprivation, had lost hope, had 
become servile, and had learned to make the best of it. His 
brother in the new world accepted the yoke only as a last resort, 
and after every avenue of resistance or escape had been tried in 
vain. As a result of this bitter contest there came a time when 
for e'ach of the colonies the mining industry began to decline, and 
ultimately ceased to be of importance. As the old mines became 
exhausted, or, reaching water level, could not be worked profit- 
ably any longer, there was nothing in the way of new discoveries 
to take their place. In 1571 the Inquisition was introduced from 



HISTORY OF MIX L\c AND MINING LAWS 11 

Spain, in the hope that its terrors would be of some service in 
spurring the natives to renewed energy in discovery, or at least 
stem the tide of rebellion thai was slowly but surely increasing 
among- them. This diabolical institution did assist for a while in 
enabling Spain and Portugal to retain control of their American 
colonies, but at the same time, as elsewhere, it brought enterprise 
to an end, and stopped intellectual progress. For a couple of 
cent inies the whole of Latin America lay practically dormant, its 
marvelous mineral resources neglected, its white populations 
scarcely increasing, and, in fact, largely undergoing absorption 
into the mass of the aborigines, only those of its cities on or close 
to the coasts maintaining their standing and trade, and its 
interior being practically abandoned to the native and the 
mestizo. 

Early in the 19th century this part of the world began to ex- 
perience a revival. Revolution and banditry, already common 
enough, became the normal condition of affairs, but now with a new 
motive behind them. By 1825 the Spanish yoke had been 
thrown off everywhere, and in its place fifteen independent repub- 
lics had arisen, Brazil becoming an independent empire and 
remaining so until 1891 when it too joined the roll of the Latin 
American democracies. 

During the first half of the 19th century, in spite of the great 
political changes that had taken place in Latin America, little if 
any alterations were made in its laws affecting mining. The po- 
litical leaders were too intently occupied with the task of keeping 
themselves in power or in driving out those who were in to pay 
much attention to anything else, and so the industry languished. 
But in the last half a revival occurred, particularly in two places. 
One of these was Chile, whose remarkable resources in saltpeter 
and copper attracted the attention of European capital; and the 
other Mexico, whose proximity to those parts of the United States 
where intense mining activity existed led gradually to the coming 
of American capital during the last quarter of the century. 
Responding to these external impulses some of the Latin republics 
took steps towards modernizing their mining laws, but in doing so 



12 INTERNATIONAL MINING LAW 

retained in essentials the fundamental principle upon which, in 
the past, the conduct of the industry had rested. This was the 
theory that mining rights should be granted mainly in the form of 
concessions, in the details of which the people as a whole need not 
be consulted, everything being left for settlement by the junta 
that, for the time being, held control of the government. As 
such a system is always favorable to capital, because it can be 
easily dealt with, the foreign influences not only favored it, but 
took much part quietly and unobtrusively in arranging its 
details. The mining codes that resulted represented no advance 
in their conception of fundamental human rights, and conse- 
quently their effect has been almost negligible in producing any 
modernization in the relations of the two great classes of the peo- 
ple. Under them, however, considerable material advance in the 
industry has taken place, particularly in Mexico, Chile, Peru and 
Bolivia, where also other factors have contributed to the result. 
Because of the still vast areas of unexplored regions in these coun- 
tries, it may yet be hoped that the progress being made in other 
parts of the world in the way of a better understanding in such 
matters will in due time result in provisions for the disposal of 
what is left of the public domain of value for its mineral contents, 
more in accord with the spirit of the age. The bitter struggle 
that has recently occurred in Mexico has, at its roots, the deter- 
mination on the one side to settle these land questions in modern 
ways, and on the other to retain the old systems and principles 
inherited from Europe. 

So, in summarizing this part of the subject, while we may con- 
sider the systems of mining law in vogue in Latin America in the 
light of most interesting links connecting European customs and 
practice with those of the new world, we cannot reasonably look 
for much in them worthy of being incorporated into our own 
codes. The history of their origin and growth forbids this. 
They are laws made for subject populations, and for governments 
carried on professedly for the exclusive benefit of the privileged 
classes. 

With the nearly simultaneous discovery of gold in California 



HISTORY OF MINING AND MINING LAWS 13 

and in Australia in the years between^l847 and 1852, primacy in 
the business of metal mining passed into the hands of the Anglo- 
Saxon peoples, where it now rests. Before considering in detail 
the various codes of mining law that have arisen since then among 
the several branches of the family it will be advisable to recount 
briefly the historical situation a little previous to and at the time 
of the discovery Without this it will be difficult to understand 
why legal conceptions on the same subject so different from those 
reached in Latin America have resulted, and also why, among 
themselves, so much variety in detail of fundamental principles 
exists. 

In the first place, in both countries (California and Australia) 
the native population was so insignificant numerically that it was 
easily pushed aside. What few conflicts did occur caused no halt 
or delay in the rush of the incoming whites, and it left no serious 
trail of brutality or cruelty in \ts wake. Nor was there an ancient 
civil/ zation to plunder. The American Indian of the West and 
the Australian blackfellow were both living in the Stone age of 
human culture when the wh-te man poured into their country. 
Metals were unknown to them and possessed no significance. 
The stranger was welcome to all he could find so long as he 
did not interfere with the natives' hunting rights and social 
customs. 

Again, neither of these aboriginal people could be induced to go 
to work for the newcomers. They preferred their wild life, and 
exhibited no inclination to adopt the white man's ways. The 
result was that the immigrants had to go to work themselves. 
For this in both cases they were well prepared, as the great bulk 
of the emigration to both California and Australia consisted, at 
first, of sturdy individuals of the farming and artizan classes, as a 
rule fairly well educated in fundamentals, and possessed of that 
independence of spirit that marks the true pioneer. But in this 
respect the Californian argonaut had somewhat the advantage, 
coming as he did from a part of the world where self government 
had been in effect for nearly a century, while as yet in all the 
lands that contributed population to the Australian goldfields 



14 INTERNATIONAL MINING LAW 

the peasantry had had no experience in such matters, and was 
quite accustomed to be guided by the views of the privileged 
classes. As we shall see, these circumstances produced some 
remarkable divergence in results. 

Lastly, neither of the new communities had a mining code to 
guide its activity, nor any inherited traditions on the subject. In 
both cases the slate was clean, and it became their task to write 
their own laws as best they could. What resulted was inevitable 
and most interesting. The Americans at once organized, elected 
officials, constructed a code, and then dropped politics and 
went to work exploring the country. The laws so enacted were 
few in number, simple in principle, and embodied some doctrines 
that seemed to be entirely warranted by the conditions existing 
and the unusual environment. As might have been expected 
they were rather crude and unfinished in detail. While they 
showed remarkable notions of justice and common sense at their 
foundation, their superstructure was sketchy and pinned together 
without much regard for the science of economic geology or the 
theories of law. They paid liberally for this new departure in 
jurisprudence later on, but the results have proved to be worth 
the price. 

The Australian discoveries occurred a few years later, and 
quite a sprinkling of American pioneers were in the first stam- 
pedes. As in California the miners quickly got together for 
organization purposes. Those of European origin, having had 
little or no experience in lawmaking, took counsel with the Ameri- 
cans present, and having considered the California code, appre- 
ciated its fundamental justice as well as its broad liberality. 
Knowing also that it was producing tremendously satisfactory 
results, they decided to adopt its doctrines with a few slight and 
unimportant modifications necessitated by the different environ- 
ment. But here the matter did not rest, for there was an estab- 
lished government in Australia at the time, as against none at all 
in California. Consequently when mining litigation began in 
the new communities in Victoria and New South Wales — just as 
it did in America — and became vexatiously active, the conserva- 



HISTORY OF MINING AND MININd LAWS L5 

( 
tive tendencies that are so strong in all British lands began to 
agitate for the abolition of the Californian doctrines, and the sub- 
stitution of theories of land tenure more in consonance with Euro- 
pean customs and practice. This succeeded, and in 1866 the 
laws first established by the miners were repealed, and replaced 
by the system now in existence. 

On the other hand, in the western mining states of America no 
serious efforts were made to change the laws for nearly fifty 
years, and up to date no alterations in fundamental principles 
have occurred. 

When mining began in Canada (in British Columbia), a similar 
series of events took place. The mining law enacted there was 
a copy of the American statute in all essentials. But in 1897 it 
was repealed, and for practically the same reasons that caused 
the abandonment of the doctrines at its foundation in the Aus- 
tralian colonies. In place of it was substituted a code based upon 
the theories at the foundation of the Australian system, yet differ- 
ing much in detail. There is in fact enough variation in it and 
in the mining laws of the other provinces of Canada to warrant 
consideration of them by themselves, and this plan will accord- 
ingly be followed. 

In South Africa, where the British colonists have built up a 
magnificent mining industry on the basis of black labor, and 
where the temptation has been great to introduce some form of 
beneficent slavery, it is vastly to the credit of the whites that 
nothing of the kind has been done. But, on account of the abso- 
lute non-existence of a white laboring class in that part of the 
world, the theory has been put into force and accepted, that all 
kinds of unskilled labor must be performed by natives under the 
direct supervision of white overseers, while the black man is 
legally debarred from rising above his class, or acquiring any 
skilled ability. This factor, together with the very peculiar 
conditions existing in the Transvaal and Rhodesia when they 
came into the possession of the whites, puts the South African 
mining codes into a class by themselves, and they will be so 
•treated. 



16 1XTERXATI0XAL MIXING LAW 

We have, then, to consider in detail, and in the order in which 
they arose, the Latin American system, the American system, 
the Australian system, the Canadian system, and the South 
African system. But before doing so it will be of advantage as 
well as interesting, to consider the ancient codes of Germany and 
Spain, and those which were in force in Latin America while they 
still were colonies of Spain and Portugal. 



CHAPTER III 
Ancient German Mining Laws and Customs 1 

In the time of Agricola (born 1494, died 1555), there was in 
practice quite a body of mining law — of its kind — in that part of 
Teutonia traversed by the Sudetic Alps, which at the present time 
constitute the southern border of Saxony and the northern of 
Bohemia, and which, as they are followed eastward, pass cen- 
trally through Silesia. In these mountains mining had been 
active already for certainly 800 years, that is, since the seventh 
century. From the first these laws had, of course, been nothing 
more than the decrees of the ruling princes who, from time to 
time, held the region by conquest or the accident of birth, and 
naturally they were promulgated with the intent of placing all the 
hazards of the business on the shoulders of the miner, and getting 
all that was possible of the results of his labor without completely 
discouraging him. In Agricola's period this body of decrees had 
become fairly liberal for their time. The chief mining function- 
ary, who was directly responsible to the ruler, was the Mining 
Prefect, who also represented the last court of appeal in all 
affairs relating to mines in all the mining districts under the 
sovereignty of that ruler. Under him, in each district, was the 
Bergmeister, who dealt directly with the miner. 

The only kind of mining property recognized was the leasehold, 
which, once granted, could be held indefinitely as long as the 
holder maintained reasonably continuous and energetic work, 
and paid his royalties promptly. 

The unit mining claim was called a " Meer," and was an area 
approximately 42 feet square, and therefore about one twenty- 

1 Abstracted from Hoover's translation of Agricola. 

17 



18 INTERNATIONAL MINING LAW 

fourth part of an acre. There were however several other kinds 
of meers, as follows : 

The ancient " Head Meer," which was bestowed on the dis- 
coverer of a new vein as a reward for the discovery, was the equiva- 
lent of seven unit meers, placed side by side in a line along the 
outcrop or strike of the lode, giving a block of ground 294 feet 
long and 42 feet wide, and containing about one-quarter of an 
acre. Next was the "Long Meer," consisting of four unit meers 
placed side by side and forming a block 168 feet long and 42 feet 
wide. Finally there was the " Regular Meer," consisting of two 
unit meers forming a block 84 feet long and 42 feet wide. All of 
these were lode claims. The region was one of veins predomi- 
nantly, producing mainly silver-lead ores, with which were associ- 
ated more or less copper, iron, and zinc, and occasionally bismuth. 
All ores were sulphides or tellurides, with comparatively little 
associated gold. Consequently there were no placers, and no 
need of placer claims. 

The procedure for acquiring title was as follows : A new discov- 
ery having been made, the Bergmeister, accompanied by one or 
more of his staff of officials, such as the T.the Gatherer, the Cash- 
ier, the Mining Clerk, etc., and also by two reputable citizens, was 
led by the discoverer to the new find. On arrival the latter, in 
the presence of the assembled witnesses, made a solemn state- 
ment asserting the facts of the discovery, all of which was taken 
down in writing by the clerk. If no one appeared as a contesting 
claimant for the ground the Bergmeister proceeded to measure 
off a "Head Meer," beginning at the discovery point and measur- 
ing off 147 feet along the strike in each direction, and also 21 feet 
on each side of it, marking the corners with posts or monuments 
of loose stone. Formal possession of this area was then given 
to the claimant. During the process each step was noted by the 
Mining Clerk. After this the Bergmeister proceeded to lay off at 
each end of this head meer a number of unit meers, the first pair 
of which was assigned to the local sovereign, the second pair to his 
wife, the third to the Master of the Horse, and succeeding ones in 
turn to the royal Cup Bearer, the Groom of the Bed Chamber and 



ANCIENT GERMAN MINING LAW'S 19 

finally a pair to the Bergmeister himself. All these were sub- 
sequently obtainable on lease by miners, through applications 
made to the Bergmeister. 

Later this custom was modified by laying off the vein on both 
sides of the Head Meer into two meer blocks, which were allotted 
to miners in the order of application, each applicant having the 
right to select his block out of any remaining unclaimed. 

On all of these claims — including the Head Meer — a royalty of 
10% of the gross value of the output was payable to the govern- 
ment. 

The width of these claims on the surface being only 42 feet, and 
the same being apportioned equally on both sides of the line of 
strike, all but veins of nearly vertical dip would require but little 
exploration in depth to carry the workings outside of their surface 
lines projected vertically downward. From this condition arose 
the first custom permitting extralateral rights. This, Agricola 
says, was of very ancient origin, and he describes its provisions 
as follows: 

"If the vein descends vertically into the earth the boundaries simi- 
larly descend vertically, but if the vein inclines the boundaries likewise 
will be inclined. The owner always holds the mining right for the width 
of his meer, however far the vein descends into the depths of the earth." 

This custom, however, applied only to that kind of mineral 
deposit known technically in that day as "vena profunda," 
which at the present time would be translated into the term 
true fissure vein." For the other two kinds of deposits which he 
called respectively " venae dilatantse" (bedded veins) and " vena? 
cumulatse" (a mass, impregnation, segregation, replacements or 
stockworks) there existed no extralateral rights; and the Berg- 
meister in allotting ground gave to the discoverer as many unit 
meers in a compact block as he thought proper, considering the 
relative importance of the discovery made, and the conditions 
under which it was necessary for the miner to operate; and to all 
others, in the order of application, smaller sized blocks. 

To companies with capital, areas of much larger size would be 



20 INTERNATIONAL MINING LAW 

allotted, at first in the way of blocks of meers, and later as irregu- 
larly shaped tracts. 

Tunnel rights also were procurable. These recognized the 
benefits of drainage, ventilation, and working tunnels, and com- 
pelled miners who enjoyed the resulting advantages to contribute 
to their cost or maintenance or both. New veins discovered in 
such excavations entitled the tunnel owner to a liberal portion 
thereof up to the surface and indefinitely downward, and pro- 
tected his interests. 

Nominally, continuous work, as well as the prompt payment of 
royalty, was required, and any one who could prove that labor 
had ceased for three consecutive shifts on a lease had the right to 
denounce and claim it. But this ruling of the sovereign power 
was liberally interpreted generally by the Bergmeister, and 
almost any reasonable explanation of default was accepted by 
that official in the cases of industrious and capable miners. 



CHAPTER IV 

Ancient Spanish Mining Laws and Customs 

To understand properly the system of mining law prevailing in 
Latin America at the present time, it is necessary to have some 
knowledge of the old Spanish laws relating to the industry, and 
it will be advantageous first to recapitulate briefly the racial his- 
tory of the people of the Iberian peninsula, for the laws that ulti- 
mately originated there were the outgrowth of the vicissitudes 
through which its inhabitants passed in their long struggle 
toward a national life. This part of Europe has been notable for 
its mineral wealth since the dawn of civilization there, which 
perhaps may be said to have begun not later than 1000 B.C., the 
date of the founding of the city of Gaddir on its southwest coast, 
now called Cadiz, by the Phoenicians. These Semitic people, 
and their Carthaginian successors of the same race did not invade 
or conquer the country, but appear to have held exclusive con- 
trol of its trade until 206 B.C. when they were replaced by the 
Romans. The latter gave way to the Visigoths in 414 A.D., and 
these in their turn were dispossessed by the Arabs (Moors) in 
711. This second Semitic sway continued uninterruptedly 
until 1031, when the Mohammedan Ommiad dynasty ended. 
The country was then broken up into a number of small king- 
doms, some Christian and some Mohammedan, and for nearly 
200 years was ravaged by the continual wars between these rival 
states. About 1140 the kingdom of Portugal achieved national 
existence in nearly its present form, and in 1212 the Christian 
kings of Castile, Navarre, and Aragon secured such a prepon- 
derance of power and population that the Mohammedan domi- 
nance began to pass away. Finally, in 1497, the region now 
known as Spain became a united monarchy under Ferdinand and 
Isabella. To summarize, the peninsula, originally inhabited by 

21 



22 INTERNATIONAL MINING LAW 

people of the Celtic race known to ethnologists under the gen- 
eral name of Celtiberians, was under Semitic influences during 
nearly 800 years (1000 to 206 B.C.), under Roman for 650 years 
(206 B.C. to 414 A.D.), under Germanic (Visigoths) for nearly 
300 years (414 to 711), again under Semitic (Arabs and Moors) for 
320 years (711 to 1031), and under partial Semitic and partial 
native rule for a further period of 466 years (1031 to 1497). 

There is little doubt that in each case the control of the region 
was sought more for possession of its mineral wealth than for any 
other reason. The Phoenicians and Carthaginians do not ap- 
pear to have penetrated to any extent into its interior, or to 
have exercised much if any political dominion there. But they 
established cities along its coasts, and traded extensively with the 
natives, giving in exchange for the gold, silver, and cinnabar, which 
the latter procured so easily, the various products of far eastern 
civilization which were highly prized in those days by the primi- 
tive people of western Europe. The Romans, however, took 
physical possession of the land and its inhabitants, imposed their 
civilization upon it, worked its mines vigorously with slave labor, 
and regarded the peninsula as one of the most desirable parts 
of their Empire. 

The Visigoths, being of Germanic stock, and coming from a 
part of Europe which even at that early date had some little 
reputation for mineral wealth, must have been attracted towards 
the conquest of the country because of its superior resources in 
this respect, and may have brought with them some little knowl- 
edge and experience in the industry. But the Roman civiliza- 
tion they dispossessed was far in advance of their own, and while 
they held the peninsula they appear to have completely adopted 
Roman laws and practice in the conduct of such mining opera- 
tions as they carried on, or permitted to the inhabitants. 

Nor did the Moors, when they held the land, make any changes 
of importance in the laws pertaining to mining. No branch of 
the Semitic race has ever been notable in that line of industry. 
They appear, however, to have done much indirectly to foster 
mining, principally by permitting much freedom of operation to 



ANCIENT SPANISH MINING LAWS 23 

those engaged in the occupation, and by a vigorous development 
of the great natural agricultural resources of the country, which 
had the effect of making labor cheap, abundant, and contented. 
During their dominance Iberia enjoyed a prosperity greater 
than any that preceded or has followed it, and to their encour- 
agement of letters and the gentler arts may be ascribed the fact 
that we have, to-day, so complete a record of the system of min- 
ing jurisprudence prevailing during those early days. Nothing 
equal to or even approaching it has been preserved in any other 
part of the world. 

During the 600 years when Spain was a Roman province, the 
common laws of that Empire took firm root among its people, 
and when the Visigoths took possession of the peninsula they 
considered the laws so satisfactory and adequate that they caused 
to be promulgated a compilation of all then in force in the coun- 
try. This compilation is known as the Code of Alaric, and is 
regarded by Spanish jurists as the foundation of their system of 
jurisprudence. It was published towards the close of the 7th 
centu^, say about A.D. 675, shortly before the rule of the Visi- 
goths began to give way to that of the Arabs. 

The Arabs, or Moors, advanced into the Iberian peninsula from 
Africa, and during the 300 years when they were in complete 
control of the country mining flourished greatly along with agri- 
culture and other industries, and the land became very rich and 
prosperous. It is generally believed by Spanish writers that 
towards the end of this period (975-1000 A.D.) what is known as 
"The Old Code of Castile" was compiled, consisting very largely 
of decrees promulgated from time to time during the preceding 
two centuries to provide for the necessities of the developing 
country, many of which had to do with the business of mining. 

After this, and during the stormy period between 1031 and 
1212, while Moorish power was declining and the peninsula was 
greatly disturbed by civil wars, mining operations were much 
impeded, and a great many of the famous properties of the day 
were flooded and wrecked. But by 1350 conditions began to 
mend, and new decrees affecting the industry became necessary. 



24 INTERNATIONAL MINING LAW 

Some of these are found in the famous "Siete Partidas" a com- 
pilation which was published in 1348. 

It will answer our purpose now simply to mention the names of 
the principal Codes that, one by one, succeeded each other. The 
first is known as the " Ordenamiento de Alcala" which appeared 
also in 1348 and is considered by Spanish jurists as a sort of 
supplement to the " Partidas." This was followed by the " Orde- 
namiento Real," which appeared a few years before the discovery 
of America. Following this was the "Leyes de Toro" in 1505, 
and the Nueva Recopilacion, the first edition of which appeared 
in 1537. Subsequent editions of this work bear the dates 1581, 
1592, 1598, 1640, 1723, 1745, 1772, 1775, and 1777, each supposed 
to be an improvement upon the one of prior date by the inclusion 
of the royal decrees issued meantime, and the deletion of those 
repealed. Finally, in 1805, came the famous work called the 
" Novissima Recopilacion de la Leyes de Espana," which is now 
the fundamental code of Spanish law except as to such decrees as 
have since then been repealed, amended, or otherwise altered by 
the Spanish Cortes, or national legislature. 

Previous to the appearance of this notable compilation, such 
decrees of the various ruling dynasties in the Iberian peninsula 
as applied to the industry of mining were scattered through the 
various Codes without any other system than that of the natural 
sequence of dates. But in the " Novissima" all laws of this class 
are collected together, and, so far as I have been able to ascer- 
tain, they constitute the oldest body of such laws extant and in a 
form that at the present time would be regarded as a Code. It 
includes decrees dated all the way from 1263 to 1790, but only 
those up to the date of 1584 refer to the ancient laws which were 
in force in Spain when the new world was discovered, and which 
naturally were transported to Spain's colonies there. In 1761, 
a noted Spanish jurist named Don Francisco Xavier de Gamboa 
published a voluminous commentary on some of these old 
decrees, which throws many an interesting side light on the 
doctrine of mining rights and obligations of his day. 

It is of course out of the question in this work to quote all these 






ANCIENT SPANISH MINING LAWS 25 

old decrees, many of which refer to the mining of non-metallif- 
erous minerals, with which we are not concerned; nor even to 
quote in full those bearing directly on metal mining, for the legal 
style of the times in which they were written was very verbose 
and redundant, including phrases and sentences touching on 
social, political, and governmental conditions long since passed 
away, and having no bearing on the present inquiry. Hence, 
what follows are pure digests or abstracts. Great care has been 
taken in preparing them, and the author believes that what has 
been retained represents accurately the true intent of these 
ancient laws. Those who wish to study them in their full form 
are referred to " Spanish and Mexican Law," by John A. Rock- 
well, published in 1851 by John S. Voorhies of New York; or to 
"Mining Laws of Spain and Mexico," by H. W. Hallack, A. M., 
published by O'Meara & Painter of San Francisco, in 1859. The 
first mentioned contains the valuable and interesting commentary 
by Gamboa on the 4th law, which is really the only one that has 
to do with the business aspects of mining. 

LAW 1 

Decree of King Alonzo XL Promulgated in the Year 1383. 

Abstracted 

All minerals of gold, silver, lead and every other metal whatso- 
ever in our realms belongs to us; therefore no one shall presume 
to work them without our especial license and command; where- 
fore we command that the rents derived therefrom be paid to us, 
and that no one presume to intermeddle with them, except those 
to whom former kings, our predecessors, or we ourselves shall 
have granted the privilege, or who shall have acquired them by 
immemorial possession. 

LAW 2 

Decree of King Juan I. Promulgated in the Year 1387 
at Birbisca. Abstracted 

Inasmuch as we are informed that these our kingdoms abound 
and are rich in minerals; therefore, as an act of grace to the inhab- 



26 INTERNATIONAL MINING LAW 

itants of the same, notwithstanding that there has been reserved 
by us minerals of gold, silver and other similar metals; it is our 
pleasure that henceforth all persons whomsoever of these our 
said kingdoms, may search for, examine and may excavate their 
said lands and estates, and remove from them said minerals of 
gold, silver, quicksilver, tin and other metals, and that they may 
search for minerals in all other places whatsoever, not prejudicing 
in their searches and excavations the rights of other persons, and 
acting with the permission of the owner; and all the minerals 
which shall be thus found and extracted shall be divided as 
follows : First, there shall be delivered and paid therefrom to the 
person who extracted the mineral, all expenses of excavating and 
extracting; and of the remainder, the said expenses having been 
deducted, the third part shall belong to the person extracting the 
mineral, and the other two parts to ourselves. 

LAW 3 

Decree of King Philip II of Spain at Valladolid. Pro- 
mulgated January 10th, 1559. Abstracted and Put 
into Modern Legal Form 

Whereas, it is very well known that great benefit to our royal 
patrimony and to our subjects and citizens has, at times in the 
past, resulted from the discovery and working of mines of gold, 
silver, quicksilver and other metals, in which we are informed 
these kingdoms are very rich; and: 

Whereas, by the law which was promulgated by King Juan I 
in 1383, the right was granted to all persons to explore for and 
work all the minerals in this kingdom, and : 

Whereas, experience has shown that very few mines have 
been or are likely to be discovered and operated under its pro- 
visions, and: 

Whereas, it is said that there are persons who have knowledge 
of the existence of rich mines but will not make known their 
location because they are in regions that have been granted 
to noblemen, bishoprics, archbishoprics and provinces, by 



ANCIENT SPANISH MINING LAWS 27 

which process almost the whole public domain has been 
alienated, and: 

Whereas, these grantees just mentioned were given exclusive 
exploring and working privileges, and now display little or no 
inclination to exercise the same or allow others to, so that we, our 
subjects and citizens are deriving no benefits therefrom, and: 

Whereas, others will not engage in mining on these grants, 
although, by the decree of King Juan the division of profits was 
arranged, yet the law is so ancient and has been so little used that 
men of means hesitate to risk their money on the strength of it ; 
besides which, many questions have arisen under it which have 
never been judicially decided: 

Xow, therefore, to clear up all these difficulties, and to make 
the investment of capital in mining an occupation as free as pos- 
sible from legal hazard and other vexations ; and having conferred 
with the members of our Council on the subject, it has been 
decided to promulgate the following decree. 

First'. — We declare void and resume in ourselves the titles to all 
mines of gold, silver 'and quicksilver in this our kingdom, wher- 
ever situated, whether in public or private land, and notwith- 
standing the grants heretofore by our ancestors or ourselves 
made, to anybody, or for any cause, doing so for the reason that 
said grants have been prejudicial to ourselves, and to our subjects 
and citizens. Provided however, that in such cases where mining 
operations in good faith are now in progress, this decree shall 
be without force and effect. However, in all other cases we 
propose to indemnify grantees for the nullification of their 
privileges herein decreed, after due examination of their title, 
and to such an extent as may seem just and reasonable under 
the circumstances. 

Second. — Inasmuch as this resumption in ourselves of our rights 
in these metals and minerals is not that we, or others in our name, 
may explore for, excavate and operate mines, but that our sub- 
jects and native citizens may have the opportunity to do so under 
fair conditions, and in all parts of our royal domain (paying 
proper damage to owners when upon privately owned land), and 



28 INTERNATIONAL MINING LAW 

may be relieved of all vexatious questions of title; and therefore, 
to all our said subjects and citizens who may hereafter discover 
and register claims on mineral deposits, in accordance with pro- 
visions hereinafter to be declared, full, free and exclusive right is 
hereby granted to operate without obstruction by ourselves or 
any other person, within the boundaries of the same, upon com- 
pliance with the regulations hereinafter to be declared, and so 
long as the royalty as heretofore arranged is promptly paid into 
our royal treasury. 

Provided however, that there be excepted from the provisions 
of this decree the mines of Guadalcanal and one league around 
them, and the mines which are already discovered within the 
limits of the Cazalla, Aracana and Galarocca districts, and a 
quarter of a league around each of them. 



DIGEST OF THE SPANISH MINING LAW AT THIS DATE (1559) 

Prospecting free. 

Discovery of ore a requisite before a valid location could be 
made or recorded. 

Record required (to be made in person before a Royal Notary, 
or in the Court having jurisdiction over the region in which the 
claim was located) within twenty days after making discovery. 
The act of recording or registering consisted in giving the name 
of the discoverer, the date of discovery, a reasonably good descrip- 
tion of the situation of the claim, and a sample of the ore found. 

Size of claim allowable, about 275 feet along the vein, by 137 
feet in width. 

Within six months from date of record the claimant must sink a 
shaft 33 feet deep on the vein, after which work must be reason- 
ably continuous in order to maintain title. Suspension of labor 
for four months continuously automatically constitutes forfei- 
ture of all rights. 

Royalty 66%% of net profits. 
Decree of March 18th, 1563. 

Promulgates a new scale of royalties, as follows : 



ANCIENT SPANISH MINING LAWS 29 

For Silver. 

Per cent. 

Bars yielding up to 144 ounces per ton 12^ 

Bars yielding from 144 to 432 ounces per ton 25 

Bars yielding from 432 to S64 ounces per ton 33^3 

Bars yielding over 8G4 ounces per ton 50 

Silver recovered from old mine dumps 20 

Silver recovered from old slag heaps 5 

For Gold, from any and all sources 50 

For Copper (figured on weight of crude ingot) 5 

For Lead (figured on weight of crude ingot) 6% 

For Antimony (payable in the ore) 123^ 

Size of discovery claim placed at 330 by 165 feet. 

Size of ordinary claim placed at 275 by 137^ feet. 

The actual discovery of ore not necessary as a preliminary to 
the location of a claim alongside of another claim containing a 
vein dipping out of it, but the locator thereof must use all possible 
diligence in sinking his exploring shaft in which he expects to cut 
the vein, and while doing so will be protected in his rights. 

The locator of a vein which is dipping out of his ground, having 
followed it to his side line and beyond into unoccupied territory, 
is permitted to locate a new claim alongside of the other to protect 
the vein, by virtue of the underground discovery so made. 

Location of ground for another, by power of attorney, per- 
mitted. Also for a servant or employee, without power of 
attorney. 

In the case of silver or gold recovered by the use of quicksilver, 
the amalgam must be brought to the Government refinery, and 
the distillation of the quicksilver effected in the presence of an 
official. 

Mines in litigation not allowed to be kept inoperative for a 
period greater than 40 days. Within that time the Judge must 
reach a temporary decision on the basis of the evidence then 
placed before him, and must place the winning party in posses- 
sion, allowing to the loser full rights of appeal, and of the presenta- 
tion of further evidence, and imposing upon the temporary win- 
ner the obligation to keep accounts, and to retain all profits 
intact until final decision is reached. 



30 INTERNATIONAL MINING LAW 

Size of discoverer's gold claim (alluvial or quartz) , placed at 
137^ by 68% feet, with the obligation to locate one of same 
size for the King alongside of his own, on which, however, the 
discoverer had a prior call for a lease. 
Decree of August 10th, 1564. 

Repeals all former laws so far as they may be in conflict with 
this one, and promulgates the following changed schedule of 
royalties. 

For Silver. 

Per cent. 
On bars yielding 216 ounces or less per ton of 2000 pounds . 10 
On bars yielding over 216 ounces and not over 576 ounces . 20 

On bars yielding 576 ounces and not over 864 ounces 25 

On bars yielding 864 ounces . . 50 

Registration made obligatory within ten days of the date of 
discovery. 

Miners allowed to locate an unlimited number of claims, and 
with no obligation to reserve any for the King. 

All discovery claims to measure 440 by 220 feet, and all others 
330 by 165 feet. 

Miners allowed free timber cutting rights on public lands, and 
also on private lands, but in the latter case coupled with the 
obligation to pay a reasonable price for the timber taken, accord- 
ing to appraisement by the local Judge. They were also granted 
all necessary rights of way over private lands, and reasonable 
grazing privileges on the same. 

Free fishing and hunting privileges within three leagues of the 
mine or furnace granted, together with the right to utilize the 
water of streams for power purposes, provided that when such 
powers were used at places where the stream was passing through 
private lands the owners of the same should be fairly recompensed 
for the privilege. 

Owners of furnaces who were able and desired to reduce therein 
ores from other mines, as well as their own, were allowed by the 
provisions of a special license to do so on condition that the ores 
were to be smelted separately, and that the ingots or bars of 



ANCIENT SPANISH MINING LAWS 31 

crude metal as produced should be stamped with a registered 
letter or mark, indicative of the ore which, for the time, was 
undergoing reduction. 

A further special license was also procurable which permitted 
the mixing of ores from two or more mines, but only upon condi- 
tion of allowing the government engineers and assay ers full access 
at all times to the works and to the accounts, with the right to 
take samples whenever desired so as to be able properly and cor- 
rectly to assess and collect the amount of royalty due from each 
contributor to an operation of that kind. 

A new dimension was ordered for the gold claim, to wit: for 
the discoverer's claim, 220 by 110 feet; for the ordinary claim, 
200 by 100 feet. 

Tunnel rights for drainage, for cooperative mining and trans- 
portation, and also for purely exploratory purposes were decreed, 
giving the excavators of such enterprises full privileges of cutting 
through and under all claims along its line. The drivers of tun- 
nels acquired thereby the sole ownership of all ore encountered 
to the extent of the size of the tunnel, which could not exceed 
66 inches of height and 165 inches of width. But, when a lode 
was cut, the tunnel owner had the right to run a drift upon it 
as large as the tunnel, and to continue driving upon it, and to 
own all the ore excavated during the operation, until the owner 
of the vein connected his workings with it. 

LAW 4 

Decree of King Philip II of Spain, at San Lorenzo. Pro- 
mulgated August 22nd, 1584. Abstracted and 
Phrased in Modern Style 

Section 1. — Law 3 is repealed, excepting such parts of it as 
provide for the resumption in ourselves (the King) of all title in 
mines of gold, silver, quicksilver and other metals and minerals; 
also all other laws and decrees heretofore promulgated that are 
in conflict with this law. 

In Gamboa's comments on this section it is stated that although 



32 INTERNATIONAL MINING LAW 

this law was framed and promulgated primarily to govern the 
operations of the mining industry of Spain, yet copies of it were 
sent to the Viceroys of all the provinces of New Spain in America, 
with the instuction that it be published there, and put into prac- 
tice, wherever it did not conflict with viceregal decrees already 
issued and approved by the King. This was done, and it will be 
found that its fundamental principle, to wit, the absolute and 
even personal ownership of all metals and minerals by the King — 
who was afterwards replaced by the State — has remained in force 
and effect in all the modern laws of the nations into which the 
dominion of Spain was broken up when these provinces, one by 
one, attained independence, in the early years of the nineteenth 
century. 

The final paragraph of Gamboa's comments on this section is 
worth quoting verbatim. He says: 

"There is no need to have recourse to other nations for mining ordi- 
nances; our own are amply sufficient. In framing them recourse was 
had to the laws of Germany, as stated and explained by Agricola, 
although the mines (claims) of that country differ from ours in the 
dimensions assigned to them, and in the modes of handling them when 
held by partners. It cannot be denied that the laws of the State of 
Hesse are very copious, little less so indeed than those of the Palatinate, 
but almost every contingency is comprehended in and provided for by 
our own." 

From these remarks it would appear that although the mining 
districts of Germany could not compare in antiquity or richness 
with those of Spain, yet in the former rules and regulations to 
govern the operations of the industry had been worked out in 
detail before the same process had taken place in the Iberian 
peninsula. There is nothing to indicate that in fundamentals 
either had borrowed from the other. 

Section 2. — Complete possessory and conveyancing rights are 
granted to discoverers of mines, so long as the provisions for 
reasonably continuous working are complied with, and the 
royalties paid. In the case of a discovery made upon alienated 



ANCIENT SPANISH MINING LAWS 33 

land, security must be given that the surface owner will be fairly 
indemnified for any damage that might result from mining 
operations. 

In commenting on this section Gamboa mentions the fact that 
prospecting and claim location was not, at first, free in Mexico, 
to the natives nor even to the Spaniards. A permit of some kind 
was necessary, and this was obtainable only at the pleasure or 
discretion of the local judge. Finding that the natives concealed 
their knowledge of promising outcroppings, and that the Span- 
iards would not prospect, the Government not only authorized 
free prospecting, but offered large rewards for all valuable finds. 
Decree to this effect was made by Emperor Charles, and dated 
December 9th, 1526. 

Sections 3 to 15. Royalties.- — Royalties on the precious 
metals are receivable only in the form of the refined metals them- 
selves. On the base metals they may be paid in the condition of 
the crude ingot. The business of smelting ores is free and open 
to all. ' But the separation of the precious from the base is 
reserved as a Government monopoly, and refineries, properly 
equipped, are established at all the principal mining districts. To 
the nearest of these the miner must bring his bars of silver-lead 
or silver-copper for the separation of the metals, and royalties 
will be collected on the arriving weights of the former according 
to the following schedules. 

For Silver.- — On bars yielding 1 }i marcs (or less) of silver per 
quintal — equivalent approximately to 216 ounces per ton of 2000 
pounds — 10%. 

On bars yielding over 1% marcs and not over 4 marcs — equiva- 
lent approximately to from 216 to 576 ounces per ton — 20%. 

On bars yielding over 1}4 marcs and not over 6 marcs — equiva- 
lent approximately to from 576 to 864 ounces, 25%. 

On bars yielding over 6 marcs, 50%. 

For Gold. From all sources, quartz, alluvial or smelted, 50%. 

For Copper and Lead. 20%, payable only in the metal. 

At the time it was the custom in Spain for the miner to be his 
own smelter, which was made possible by the fact that only the 



34 INTERNATIONAL MINING LAW 

very simplest kinds of ore were treated, of which there was at one 
time the greatest abundance. 

Other scales of royalty, less severe, were arranged by special 
dispensation for those who undertook the reopening of old and 
long abandoned mines; and also in the case of ore of very low 
grade in the precious metal. 

By decree of August 18th, 1607, the royalty on all mines pro- 
ducing gold or silver, or both, was reduced for a period of ten 
years to one-fifteenth, or 6%% ; and for the next following decade 
to 10%, with the proviso that at the end of this 20-year period 
the royalty might be again raised, but would never thereafter 
exceed one-fifth, or 20%. 

Because of a lack of knowledge at the time as to how to reduce 
antimony ores to the metallic state (which in fact was not accom- 
plished until 1740), the royalty on pure ores of that metal was 
accepted in the form of ore. 

In 1569 many foreigners, mainly Germans, were employed by 
Spanish individuals and companies in conducting their mining 
operations, native talent in that line being very low. Also 
mines were leased to foreigners. 

Section 16. — Prospecting and digging are free on all lands, 
either public or private, and without permit, but any damage on 
private land made by such work must be paid for. No royalty 
payable to surface owners. 

Section 17. — Registry required within 20 days of date on 
discovery stake, before the Judge of the Court having proper 
jurisdiction in the District. The claimant must produce a sam- 
ple of the ore disclosed by his excavations, must give his name 
and personal description and date of discovery, and describe the 
locality with reasonable exactitude and state details of digging 
performed. Within 60 days thereafter he must deliver a copy of 
this, duly certified by the local authority, to the chief govern- 
ment official of the Department, after which, and during another 
period of 90 days, he must sink a shaft on the ore to the depth of 
at least 33 feet, approximately. Having done this, and having 
determined by his explorations to that date how he desires to lay 



ANCIENT SPANISH MINING LAWS 35 

out his ground, he must file a petition asking to have his bounda- 
ries marked out. The Government then orders an examination 
of the premises by an engineer, who, if everything has been done 
by the claimant that the laws require, places his corners and puts 
him formally in possession. 

The discovery shaft must be 66 inches deep and 33 inches 
wide, and the discovery stake must be firmly set in it, not along 
side of it. This discovery stake could not be moved after once 
being set. 

The personal attendance of the claimant for the registration 
act was not specifically required, although considered most advis- 
able. The act could be performed by any duly authorized Agent. 

Apparently there was no limit to the number of claims that 
an individual could acquire, except that he could take only two 
adjoining claims upon a vein, and must then leave the space of 
three claims vacant before staking out another two. But if a 
partnership of two or more existed, four or more claims (accord- 
ing to the number of partners) could be staked on the same vein; 
but, as before, a length of the vein equal to three claims must be 
left at each end of such a group location, before another group 
location could be made. 

The size of the regular claim was 165 feet in length, by 87 J£ 
feet in width. But the discoverer of a new vein was allowed to 
locate two claims thereon, contiguous, each of which might meas- 
ure 220 feet in length by 87^ feet in width. 

A claimant must stake his ground within 10 days after erecting 
his discovery stake, but no valid discovery could be made, or 
stakes set up, until ore had actually been found. 

The discoverer of a new vein was allowed to lay out his ground 
either along or across the strike of the vein, as he preferred, and 
all other following locators were permitted to do the same. All 
claims to be rectangular in shape. 

This provision was for the purpose of allowing the miner to 
secure more of the underlay or dip of the lode than of its strike, 
if he preferred to do so; also to enable him to cover wide outcrops 
or blowouts, or segregations or stockworks, 



36 INTERNATIONAL MINING LAW 

When the miner, following ore, either along the strike or on 
the dip of his vein, or on any line between the two, passed his 
boundaries and entered the claim of a neighbor, he had the right 
to continue working until he connected with the workings of the 
neighbor, and remove and own all ore broken down up to that 
point. But as soon as connection was made, thus proving the 
two veins to be identical, the explorer was required to withdraw 
to within his own lines. When such a connection was made on 
the dip, the same rule applied, unless the connection was made 
outside of the boundaries of both claims and in unoccupied terri- 
tory, in which case each miner could hold up to the point of con- 
nection or intersection. Beyond that the ground (in vacant land) 
belonged to the one who first made a claim for it. 

The obligation to sink on the vein to the depth of 33 feet within 
three months after registration was mandatory, and no convey- 
ancing right whatever existed until that amount of development 
work was done. 

Possession was maintained by keeping four laborers per day at 
work. Failure to do this during four consecutive months auto- 
matically worked forfeiture. 

The Spanish verb "denunciar" and its derivatives have, in 
many English renderings of Spanish legal documents, been trans- 
lated by the use of the English verb "to denounce" and its de- 
rivatives; and in common parlance among English speaking 
mining men the act of locating a mining claim in a Spanish 
American country is generally spoken and written of as a "de- 
nouncement." Some little misunderstanding has thereby re- 
sulted. The two verbs, although derived from the same Latin 
root, convey among the two people somewhat different meanings. 
With the Spanish, "denuncio" means "I advise, give notice, lay 
information against," but not necessarily charging the doing of 
an illegal or wrongful act. With the English "I denounce" 
means "I publicly accuse, declare as deserving of punishment," 
the implication being that a legal or moral wrong has been com- 
mitted. Bearing in mind this difference of meaning will make it 
easier to apply the proper words in dealing with the verbiage of 



ANCIENT SPANISH MINING LAWS 37 

Latin American mining law. When a claim is located in a Span- 
ish American country on a new discovery, the process of doing 
so is more correctly described in English by the use of the word 
"locating," for, under the circumstances the Spanish American 
miner never speaks of the act as a "denuncio," or denouncement. 
Bat when a claim has been automatically forfeited by neglect on 
the part of the owner to perform the work required by law, or 
to pay the prescribed royalties, it may then be acquired by the 
first party who applies to have it registered in his name, and the 
act of so doing is then properly spoken of as a "denouncement," 
for the new claimant, in making his application, gives notice to 
the Government that the provisions of the law have not been 
complied with, and that consequently the first claimant has 
forfeited his right to possession. 

Decree of August 18th, 1607 

Promulgates a new scale of royalties, to apply on gold and 
silver from all sources, as follows : 

For the next 10 years, 6%%. 
For the succeeding 10 years, 10%. 

The government reserves the right at the end of the 20-year 
period of advancing the rate to 20%, but with the promise that 
no further advance should ever be made. 

Repeals all decrees prohibiting the mixing of ores in smelting, 
and allows complete freedom in such matters. Abandons the 
Government monopoly in refining and in the reduction of amal- 
gam, and authorizes the Commissary of the Treasury to take all 
such matters up with the individual producers, and make such 
agreements with them as, in his opinion, will give the greatest 
possible encouragement to the industry of mining, and at the 
same time secure from it the highest possible amount of revenue. 

ABSTRACT OF THE SPANISH MINING LAW OF APRIL 11TH, 1849 

All substances with which mining has to do belong to the State, 
and the same cannot be excavated and taken away without per- 



38 INTERNATIONAL MINING LAW 

mission of the government, and in the manner prescribed in this 
law. 

No claim may be located until a discovery of ore is made. 

Claims whose location acts have been approved are granted 
for unlimited time, subject to the provisions of the law, and cover 
all mineral substances except quicksilver and salt, which are 
held to be government monopolies. 

Prospecting is free to all, natives and aliens, and upon all 
classes of land, whether public or private, so long as the work is 
limited to shallow trial pits not over 33 inches in depth and 1 1 feet 
square in surface area. But even such excavations cannot be 
made nearer than 140 feet to a building, or a piece of cultivated 
or enclosed land, or public property, without the permission of 
owners. If permission is refused and the explorer is willing and 
able to give bonds for possible damages, he may secure the 
necessary authority from the Government. 

On all claims located on private lands the owner of the same 
has the right to demand a one-tenth interest (in expense as well 
as profits) if the right is exercised within two months after noti- 
fication of a discovery. 

If the explorer desires to sink deeper than 33 inches on private 
land, he can obtain the right to do so by giving proper security 
to interested parties. The first applicant to explore in depth on 
private land can secure exclusive rights for a year to do so over 
such an area as may be legally located, which area must be 
delimited within three months. If, at the end of the year, he 
has worked with reasonable diligence and energy on this area, the 
local authority, after due examination, and in consultation with 
his associates, will extend his time as long as reasonably energetic 
work is maintained. On such a claim the surface owner has no 
right to demand any interest. 

The unit mining claim is 825 by 550 feet in area. An individual 
can locate only two of these contiguously on the same vein, but 
a partnership of four or more may locate three of them. If an 
entirely new vein is thus discovered, the discoverer is entitled 
to one more full claim. 



ANCIENT SPANISH MINING LAWS 39 

All claims must be rectangular in shape. 

Fractions between claims of less than two-thirds normal area, 
are to be divided up proportionately between the adjoining prop- 
erties, but when such fractions contain more than two-thirds of a 
full claim, they may be located as a claim, if desired. 

The possessory title to a mine is maintained by keeping a 
minimum of four men at work during a total of eight months of 
the year. 

Work cannot be suspended on a mine without first giving notice 
of the intention to the local authority, and allowing him time 
sufficient to have it examined and surveyed, if deemed by him 
advisable. 

On all located claims work in earnest must begin within six 
months of date of registration. Failure to do this, and to prose- 
cute work as mentioned in the foregoing paragraph, automatically 
results in forfeiture of title. 

All claims must be registered before the political chief of the 
district, and not more than two unit claims may be included in 
one registration, except in the case of a new discovery, or a 
partnership. The details of the process of registration are com- 
plicated and long drawn out, and may become expensive. 

Placer claim areas cannot exceed about 82,500 square feet, and 
must be marked out in the form of a rectangle. 

Claimants are under obligations to keep their monuments in 
good condition and repair. 

OLD SPANISH DECREES RELATING TO THE MINING INDUSTRY 
IN SPANISH AMERICA 

King Charles, December 17th, 1551. — Directs that natives shall 
have the same right to discover and work mines as is enjoyed 
by the Spaniards and the mestizos. 

King Philip II, May 23rd, 1559. — Indians allowed equal rights 
with Spaniards in prospecting for, locating, and working mines. 

King Philip II, May 8th, 1572. — The exportation of quick- 
silver from Spain to Mexico and Peru, or from Mexico to Peru, 
or from Peru to Mexico, is prohibited to all private parties, as 



40 INTERNATIONAL MINING LAW 

the Spanish government reserves the quicksilver industry as a 
government monopoly. Even when the metal is collected by 
distillation from amalgam it must be turned over to the local 
mining official at a price to be determined by him. 

King Philip III, November 26th, 1602.- — The mining laws and 
practice current in Spain are to be made the laws of Spanish 
America wherever possible, and when not inconsistent with laws 
already enacted there. 

King Philip III, March 29th, 1621. — Clerics and religiosos 
not allowed to own or work mining property. 

King Philip IV, March 28th, 1633. — We ordain and charge 
the Viceroys, Presidents and Governors, that they exercise 
particular care and diligence in ascertaining if, in their districts, 
there be any mines of gold, silver or other metals, of which the 
Indians have or can obtain knowledge, and that, after due 
inquiry and advice, they cause to appear before them the Indians 
of the most reliability, in order that these, personally, and others 
who may have more skill and intelligence, may give information 
about the places and positions where it has been understood 
there are mines which are concealed in order that they may not 
be worked (although such working really results to their benefit) , 
because they are naturally inclined to idleness; and that they be 
assured in our name that, for their care and trouble, if successful, 
there shall be granted to them, and henceforth there are granted 
to them, many rewards and exemptions; and especially that 
henceforth they shall not be assigned to work in any mines, and 
that they and their descendants shall be forever exempt from 
personal taxes; and, if they are Spaniards or mestizos, they shall 
receive gifts corresponding to their rank. 

King Charles III in 1783. — Preamble (condensed). The 
mines are the property of my Royal Crown, by their nature and 
origin. 

Without separating them from my Royal patrimony, I grant 
them to my subjects in property and possession, in such manner 
that they may sell, exchange, pass by will either in the way of 
inheritance or of legacy, or in any other manner dispose of all 



ANCIENT SPANISH MINING LAWS 41 

their property in them upon the terms on which they themselves 
possess it, and to persons legally capable of acquiring it. 

Be it understood that this grant is made upon two conditions: 
First, that they (my subjects) shall pay to my royal treasury the 
proportion of metal reserved thereto; and secondly, that they 
shall cany on their operations in the mines in accordance with the 
provisions of these ordinances; on failure of which, at any time, 
the mines of persons so making default, shall be considered as 
forfeited, and may be granted to any person who shall denounce 
them accordingly. 

Digest of Law 

The first discoverer of a new vein in a new district is entitled to 
locate three claims on the principal vein, and one on each of the 
other veins subsequently found by them. But when a new vein is 
found in an old district, the discoverer may make only two loca- 
tions upon it. 

Within 10 days after discovery application must be made to the 
nearest mining Judge or District official, giving all details of the 
situation and circumstances. Copies of this notice must be posted 
in public places for 90 days, during which period the applicant 
must sink a shaft 30 feet deep on his vein, and offer it for inspec- 
tion to an officer of the Court, who, on approving the exploration 
as to its sufficiency as the basis of a legal claim, shall survey the 
area asked for, and set the corner posts. If no objection has been 
filed within the period of publicity, this officer shall place the 
applicant in possession, and give him a written document evi- 
dencing his legal ownership thereto. 

If the vein discovered is on privately owned land, the claimant 
must pay this surface owner for such surface rights as he may 
need, the amount to be settled by arbitration. 

The same procedure is provided for all other classes of mineral 
deposits, including alluvial or placer deposits. 

Parties other than original discoverers are allowed to locate any 
number of claims anywhere, except that the location of two con- 
tiguous claims on the same vein is not permissible. 



42 INTERNATIONAL MINING LAW 

These regulations are to apply to precious stones, salt, coal, 
bitumen and all metals except mercury, which latter the Govern- 
ment reserves the right to take over, paying proper compensa- 
tion for the same. 

Prospecting and mine ownership are free to all Spaniards and 
legal citizens of Spanish America, but prohibited to foreigners 
until they become naturalized. 

The length of the claim unit shall be 550 feet, measured along 
the course of the vein. Its width, in the case of a perpendicular 
vein, shall be 225 feet. If, however, the vein as shown in the 
preliminary exploring shaft shows a dip, the angle of the dip is 
to be determined by the examining government engineer, and 
the width shall then be increased according to the following rule : 

When the angle of divergence from the perpendicular is 10° by 1123^ ft. 
When the angle of divergence from the perpendicular is 15° by 125 ft. 
When the angle of divergence from the perpendicular is 20° by 137^ ft. 
When the angle of divergence from the perpendicular is 25° by 150 ft. 
When the angle of divergence from the perpendicular is 30° by 162^ ft. 
When the angle of divergence from the perpendicular is 35° by 175 ft. 
When the angle of divergence from the perpendicular is 40° by 187^ ft. 
When the angle of divergence from the perpendicular is 45° by 200 ft. 

The locator has the right to take any part or all of these widths 
on the side towards which his vein inclines. 

Miners are permitted to move their corners and lines (but not 
to increase their areas) if it can be done without injury to neigh- 
bors. But all such changes must be effected with the cognizance . 
and permission of the local authority. 

The old law, allowing the miner to follow his lode into the terri- 
tory of another, until he connects with the workings of the latter, 
is repealed. ' 

The Tribunal of Miners is created, to consist of Spaniards or 
their American descendants of unmixed blood. 

After boundary lines are set the miner has the exclusive right 
to all veins within the same. 

If a miner fails to keep at least four men at work on his prop- 



ANCIENT SPANISH MIXING LAWS 43 

erty during at least eight months of the year, forfeiture of the 
title automatically ensues. 

The miner may not abandon his mine without first giving notice 
of his intent to do so to the local authority, and then allowing 
sufficient time for the latter to examine, measure up and survey 
the workings, and publish the intention of abandonment. 

Royalties, on gold and silver, 20%. 



CHAPTER V 

Mexican Mining Decrees from 1821 to 1883 

These will be found interesting and of importance as showing 
the successive steps taken in the gradual process of clearing 
away the repressive features of the mining laws that were in 
force while Mexico was yet a colony of Spain, thus preparing the 
ground for the present very liberal regime. The period was one 
during which the country was desperately in need of metallic 
money. It was imperative to foster and encourage the mining 
industry in every possible way, even to the extent of allowing 
foreigners to become interested. In no other country of the 
world — except perhaps China — has the unreasoning hatred of 
the alien been so strong. The most disliked and feared of all 
was the Spaniard. The antipathy to the American was almost 
as great, especially towards the latter end of the period. The 
German was the most favored, but the arrivals of that nationality 
had no inclination towards mining, and rarely brought any capital 
with them or could command it. The English were the explorers 
and investors of the day and were eager for mining adventure 
in any part of the world. Much new money came to Mexico 
from Great Britain during this period of its history, and un- 
fortunately almost all of it was lost to the investors. 

November 22nd, 1821.- — To encourage mining, all former duties 
and taxes on the industry were abolished, and a uniform duty 
of 3 % on fine gold and silver substituted. 

Quicksilver and explosives were relieved from all forms of 
taxation. 

October 7th, 1823. — The law prohibiting unnaturalized aliens 
from acquiring and working mines was suspended. In its place 
it was provided that native mine owners needing capital for 

44 



MEXICAN MINING DECREES 45 

mining purposes were permitted to borrow from foreigners, and 
to give such security as might be demanded, even to a mortgage 
on a mine, or the shares of a mining corporation. But even 
then the alien could not register or denounce a mine, nor buy its 
shares. 

February 13th, 1824. — The importation of quicksilver from any 
source was made free. 

May 20th, 1826.— The Tribunal of Miners was abolished. 

May 16th, 1842. — Aliens residing in the Republic were author- 
ized to discover, register, denounce and hold mining property, 
and work the same. Such aliens were relieved from military 
duty, but must pay the military poll tax, and must consent in 
all ways to live under Mexican law. If such an alien absented 
himself for two years from the country, without permission from 
the government, or if by death his property descended to non- 
resident aliens, it could be condemned and sold. The right to 
own and work mining property did not include discoveries made 
upon the 'Public Domain. But if such a discovery was made by 
an alien, he could obtain the right to own and operate by direct 
arrangement with the Government in the form of a concession, 
under certain conditions. 

May 31st, 1843.— A reward of $25,000 was offered to each of 
the four mining proprietors who produced, in one year, from 
Mexican mines, 2000 quintals (about 100 tons) of quicksilver, 
which the Government offered to buy at the rate of $5 per quintal. 
All workers in quicksilver mines were relieved from military duty. 



Digest of Mining Law Promulgated December 15th, 1883 
under the presidency of manual gonzalez 



Prospecting is free on all lands of the Republic, by open excava- 
tions not over 15 feet in depth, or by drilling to any depth. But 
where the explorer desires to conduct his operations on privately 
owned land, the consent of the owner must first be obtained. If 
it is refused, the explorer may secure from the Government a 
permit, good for 30 days, with reasonable extensions for as long 
time as he can show the necessity for the same. 



46 INTERNATIONAL MINING LAW 

The unit claim for a vein is 200 meters long, and 200 to 300 
meters wide, according to the inclination of the vein as deter- 
mined by the government expert who examines the preliminary 
excavations when application is made for permanent registration. 

The placer claim area is 20 meters square. 

The claim for segregated and bedded-vein deposits is 300 meters 
square. 

The claim for an iron ore deposit is 1500 meters square. 

The discoverer of a new vein or deposit in a new district may 
locate three contiguous unit claims upon it, and one upon each 
of the other veins discovered by him in the same locality. But 
when the discovery is of a new vein in an old district he may 
locate only two claims upon it, which also must be contiguous. 

In the case of alluvial or bedded deposits, the discoverer may 
also take three units. 

All succeeding locators, in both cases, are confined to the loca- 
tion of one claim only, on each vein discovered. 

Registration proceedings before the local Authority are allowed 
at the convenience of the locator, and also at his peril, for, under 
similar conditions, the ground is awarded to the first applicant. 

Registration once effected, the grant is for unlimited time, sub- 
ject to annual labor conditions calling for the employment of six 
men per day during not less than six months of the year, con- 
tinuously, or interrupted, according to the convenience of the 
claimant, and the prompt payment of the government royalty, 
which shall not exceed 2% gross. 



CHAPTER VI 

The Latin-American System of Mining Law. Digests of 

the Mining Laws of Argentina, Bolivia, Brazil, Chile, 

Colombia, Costa Rica, Cuba, Ecuador, Guatemala, 

Honduras, Mexico, Nicaragua, Panama, Peru, 

Uruguay and Venezuela. Results of 

the System. Statistics of Metal 

Production from 1851 to 1916 

THE LATIN-AMERICAN SYSTEM 

The mining laws of this category are those of Mexico, of the 
six republics of Central America (Guatemala, Honduras, Nicara- 
gua, San Salvador, Costa Rica and Panama), of Cuba, and of the 
ten republics of South America (Colombia, Venezuela, Brazil, 
Paraguay, Uruguay, Argentina, Chile, Bolivia, Peru, and Ecua- 
dor). These are all based on doctrines of land tenure inherited 
from Spain or Portugal, which in turn trace back their conceptions 
thereof to Roman law. 

The Roman doctrine seems to have been about as follows : 
That when a new terrain was added to the Empire, the prop- 
erty rights of those dwellers therein who submitted without 
resistance to the new sovereignty were recognized and confirmed 
as to everything at and on the surface, but all beneath the sur- 
face — whether on occupied or unoccupied lajid — passed to the 
Empire because it had not been specifically claimed or properly 
utilized by the soil owner or the conquered state. The warrant 
for the latter doctrine was based upon the fact that whatever 
mining had been done in South-western and central Europe 
before the arrival of Roman sway appears to have been conducted 
on areas or regions regarded as common property, to which all 
had free access, and from which anyone could take whatever he 

47 



48 INTERNATIONAL MINING LAW 

could find, so long as he did not interfere with similar operations 
by another. From this generalized concept two theories de- 
scended upon Europe when the Empire broke up. One of these 
was that the sovereign power owned all beneath the surface under 
all circumstances, but that a surface occupant had a right to claim 
damages for any injury that might be inflicted upon his particu- 
lar part of it by mining operations; and, the other was that the 
surface occupant was the absolute owner of both surface and 
underground, but if he did not utilize the latter and a third party 
wished to do so, the exclusive privilege of doing so could be 
claimed. 

The first of these principles seems to have prevailed in those 
parts of the Empire where Roman dominion continued long 
enough to impress its customs and language permanently upon 
the people, which was particularly the case in those regions now 
called Spain and Portugal. The second prevailed where Rome 
failed to impress its customs and speech to that extent, as in the 
British Isles and among the people of Teutonic and Slavonic 
speech. 

In Spain, which is a very highly mineralized region, and where 
mining has been an industry of importance ever since the Roman 
occupancy, the first doctrine has always been very strongly held. 
This is interestingly shown by a decree of Alfonso XI, promul- 
gated in 1383, claiming personal and absolute property not only 
in the precious metals but in all others, whether existing on 
privately owned land, or on what remained then of the public 
domain. It was held with equal strength in Portugal, and was 
therefore naturally transplanted to the colonies of the two people 
in the new world. Similarly, the social views then current in 
these two countries were impressed upon the native populations 
of the colonies, with which, in due time, the Latin stocks have 
become more or less amalgamated. 

We find this principle then, slightly modified here and there, 
and more than anywhere else in Mexico because of its adjacency 
to a nation of another race and culture, at the foundation of all 
Latin-American mining codes. Because of it, in these lands the 



LATIN-AMERICAN SYSTEM OF MINING LAW 49 

doctrine everywhere holds good that whoever proposes to engage 
in mining must first go to the government, and seek for a con- 
cession for such areas as are desired. This being considered the 
only normal way of initiating business of this kind, no special 
laws were for a long time deemed necessary for the encourage- 
ment of discovery. Such an occupation as prospecting was not 
known or else it was regarded as a process requiring the exercise 
of scientific ability, and the expenditure of considerable money. 
In all these countries there has never been, until very recently, a 
middle class. Society has been divided only into the upper class, 
who did no manual labor, and the lower class, who did nothing 
else. The first would not prospect even if the idea had occurred 
to them, and the second were assumed to be too ignorant and 
improvident to engage in such work. The discovery of new 
mines thus became merely a matter of accident, and has remained 
so ever since. Such mines as were known and had a past reputa- 
tion for productiveness, but had been abandoned for one reason 
or another — generally because permanent water level had been 
reached, and its control was beyond the capacity of the crude 
appliances of the day — lay neglected for generations, until for- 
eigners, attracted by legends more or less reliable as to their 
past history, succeeded in interesting outside capital in their 
rehabilitation. The Latin American is not himself a miner by 
temperament, and is rarely willing to risk his money in ventures 
of this kind. But he is always ready to sell. In this way many 
of the famous mines of old passed into the possession of aliens. 

As this process advanced, and the industry began to revive 
somewhat, the necessity arose for legislation of the kind that 
defined more clearly the relations of capitalists and corporations 
to the State, and accordingly new codes were enacted in most of 
the South and Central American republics. Abstracts of most 
of these follow. In all of them, except Argentina, where the 
occupation of prospecting is referred to at all — as it generally is — 
it is declared to be free and open to any citizen or alien. But the 
regulations prescribed are of such a nature that few if any of the 
class that would do prospecting work can comply with them, or 



50 INTERNATIONAL MINING LAW 

would do so if they could. Thus in Argentina, for example, whose 
code in this respect, however, is not quite typical, application for 
prospecting rights must be made in writing, the applicant must 
state the area he desires to search over, and the metal or metals 
he hopes to find. The region asked for cannot exceed 1250 
acres, and the time granted for the search must not be over 300 
days. If the permit is granted, and the location proves to be 
upon land already alienated, and the owner objects to the explora- 
tion, the applicant must go before a Court of record and submit 
his request to a public hearing. If this results in his favor the 
area must be advertised for a stated period, and a bond given to 
protect the surface owner from any damage that might result 
from the excavations about to be made. In Bolivia, in addition, 
the Court sends an expert — at the expense of the applicant — to 
look over the ground, and decide whether it is worth prospecting, 
after which it is still wholly within the power of the authorities to 
refuse the permit. But if it is granted, only 30 days are allowed 
for the search. In Peru, after obtaining the permit, a shaft 30 
feet deep must be sunk, and submitted to the inspection of an 
official of the Mines Department, who has the arbitrary power to 
refuse further permission to operate if, in his opinion, the chances 
of developing a paying mine are poor. Naturally little pros- 
pecting (as we understand the occupation) will be undertaken 
under such conditions, and when laws are so framed it is clear 
either that it was not intended to provide for that line of activity, 
or that no proper conception of the necessity of such preliminary 
exploratory work existed in the minds of the legislatures who 
enacted them. 

In Mexico and Chile, however, all such restrictions are 
removed, and yet the business of prospecting is unknown. Why 
this is so will perhaps be made clear in the chapter on that 
subject. 

Throughout Latin America the principle holds firm that no 
fee simple title is obtainable for mineral land. Possessory rights, 
subject to an annual tax is the only form of title given. This 
annual tax is generally quite reasonable, and often is payable in 



L4TIN-AMERICAN SYSTEM OF MINING LAW 51 

two or more installments, but it cannot be paid in labor, which 
is the only kind of currency the working class possesses. Hence, 
even in Mexico, very few laboring men become mine owners. 

No extralateral rights are allowed anywhere under the Latin 
systems, but a most interesting attempt to convey such privileges 
to a limited extent has been inherited from the old Spanish laws, 
and has been incorporated in the Peruvian law. Details of this 
are given in the chapter on "Extralateral Rights." 

In all respects the laws of these countries are apparently favor- 
able to company operations. Concessions are liberally granted, 
and as long as the very reasonable annual taxes are paid, and no 
revolutions occur, holders of such rights are assured of great 
security. The general laws and the church keep labor well in 
control, and experience has shown that the working people of 
these countries, when fairly treated, are faithful and can be 
trained to a moderate degree of efficiency. They make excellent 
miners, and quite a proportion become capable of handling ma- 
chinery under ordinary circumstances. But universally they 
fail in emergencies, when initiative is demanded. This is un- 
doubtedly due, not to any lack of intelligence or courage, but 
to a lack of education. So long as a people do not know the 
causes of the simple phenomena of every day life, and are taught 
that they must look to others for explanations of such matters, 
so long will they remain incapable of giving anything more effi- 
cient than faithful routine service in return for wages. 

In Mexico, where the Latin system has attained its highest 
development, the mining laws, so far as they touch the relations 
between the State and mining corporations or individual mining 
operators, are exceedingly satisfactory. Mining engineers, 
company managers and agents universally approve them. The 
proportion of gross output claimed by the State in the form of 
taxes or royalties or both is not unreasonable. The protection 
granted in return is ample so long as the authorities retain control 
of the population. Few regulatory systems work as well when 
they work at all. But in all lands so conducted, on the basis of 
a large submerged, uneducated, and supposedly inferior working 



52 INTERNATIONAL MINING LAW 

class, with no middle class into which they may hope to elevate 
themselves, and through it voice their aspirations to the upper 
and governing class, rebellion and anarchy sooner or later come, 
destroying the improvements and wiping out the profits of the 
years of quietude. To the Anglo-Saxon, operating for himself 
or others in such lands, the problem is to keep looking ahead for 
the time of the inevitable storm, and well before its arrival to 
clean up if possible and get away; to do the latter, anyway. 

It would be taking a backward step to look to such lands for 
ideas in law that might be advantageously applied to modern 
industrial conditions in forward-looking nations. The concep- 
tions of human rights current there are those of regimes that have 
already had their day. 

ARGENTINA 

(Law of November 25th, 1886, with amendments to date of January 1st, 

1917) 

For the purposes of the law mines are divided into three classes, 
as follows : 

Class 1. — Those which exist under the surface soil, in rock in 
place, to wit: ores of the metals, combustibles, and precious 
stones in veins. These are open for appropriation under the 
law. 

Class 2. — Those which occur on or in the surface soil, or, if 
extending below it into the bedrock, yield well known materials 
of common use. Included in this category are metalliferous 
alluvial deposits, abandoned mine and furnace dumps, and tail- 
ings from mills, borax, saltpeter, marl, peat, pyritiferous and 
aluminous earth", magnesite, fuller's earth, emery, ochre, fossil 
gums, soapstone and whetstone, phosphates, sulphur, barite, 
fluorspar, copperas, graphite, potters clay, and salines. These, 
when found upon the public domain, may also be appropriated 
under the law. When occurring on alienated land they belong 
preferentially to the owners thereof, but are open to appropria- 
tion by others with his consent, which under certain circum- 






LATIN-AMERICAN SYSTEM OF MINING LAW 53 

stances may be forced, under the theory of eminent domain, if 
considered for the public good. 

Class 3. — Building stone, brick clay, sand, cement rock and 
similar materials. The land upon which these substances are 
found may be purchased from the government in the ordinary 
way if still unoccupied, but when upon alienated land belong 
exclusively to the surface owner, and cannot be appropriated 
without his consent. 

As to other substances not above mentioned, either omitted 
accidentally or because they have become known or desirable 
only recently, the rule for classification will be based upon their 
nature and importance. The same rule will apply to the sub- 
stance classified, which sometimes, by reason of the discovery of 
new uses, should be transferred from one class to another. 

Mines that are open for appropriation are held to be the prop- 
erty of the Nation, whether situated upon public or upon private 
land. 

The right of searching for, owning, using, and selling such 
deposits is- conceded to all individuals who can legally own prop- 
erty of any kind, but only in accordance with the provisions of 
the law. The Nation is not empowered to work or sell mining 
property, but it can grant the provisional possession and usage 
of such real estate so long as the conditions for tenancy and opera- 
tion are complied with. Mines constitute a class of property 
distinct from the surface, and may be transferred from one holder 
to another by substantially the same procedures as in the case of 
ordinary real estate. 

Prospecting is not free. A permit is required, both from the 
government, and from the soil owner when it is desired to explore 
on alienated land. But in neither case does the permit cost any- 
thing. To secure exclusive exploring rights on a selected area a 
written application must be made to the local authorities giving 
a description of the tract desired, the metal or mineral to be 
sought, and the name and address of the surface owner if the 
tract is not on the public domain. After public advertisement 
of the application, and other formalities that may take 30 



54 INTERNATIONAL MINING LAW 

days or more for their execution, the permit may be granted. 
It may also be denied if the surface owner can show good cause 
for refusal. If granted, the area so securable is 500 hectares 
(about 1250 acres) for one individual and 1000 hectares for two 
or more if the land is cultivated or fenced, or 2000 hectares if on 
the public domain. The tract must be a solid body, and in as 
compact and regular a form as possible. The term cannot exceed 
300 days. Active work must begin within 30 days, and must be 
continuous thereafter. If within the term the prospector makes 
a discovery and desires to inaugurate serious development work, 
he may locate three claims, contiguous or separate, and within 
five months thereafter must apply for the formal grant of the 
same. Meantime he cannot turn into money in any way any 
substances found, but must store them upon the premises until 
the grant issues. Also, before the latter will be issued to him 
he must pay the surface owner (if any) for all damage that may 
have resulted from his prospecting operations, and may be re- 
quired to give security for what may be done in the future. 

The unit lode mining claim is a parallelogram measuring 300 
meters in length, which dimension must be laid off along the 
apparent strike of the ore body. When the latter dips vertically 
or nearly so into the earth, the width allowed is 200 meters. 
When the dip is greater than 45 degrees from the vertical and 
not over 50 degrees, the width can be 245 meters. Between 50 
and 70 degrees a width of 250 meters can be taken. From 70 
to 75 degrees, 275 meters. If over 75 degrees, 300 meters. The 
discovery point may be anywhere within the boundaries. For 
an ordinary alluvial claim, 100,000 square meters (about 21 
acres). For dumps, slag heaps and tailings, 70,000 square meters 
(about 15 acres). For rock salt and peat, 20 hectares (about 
50 acres). For pyritous, aluminous or Fuller's earth, copperas, 
magnesite, emery, ochres, ferruginous clays, fossil gums, soap- 
stone and whetstone, phosphates, chalk, sulphur, baryta, fluor- 
spar, graphite, kaolin, soda and potash salts, 70,000 square 
meters. 

For iron mines, two unit lode mining claims, or 120,000 square 



LATIN-AMERICAN SYSTEM OF MINING LAW 55 

met ims (about 25 acres), but if grouped, up to 240,000 square 
meters (about 50 acres) may be taken. 

For coal, oil, gas, asphalt and other combustibles, three unit 
lode claims, or 180,000 square meters (about 40 acres), but when 
grouped, up to 540,000 square meters (about 120 acres) are 
allowed. 

The discovery of ore is not necessary in the case of a lode claim 
located upon the dip of a vein, where the outcrop is already 
located. 

In the case of all mining claims located on alienated land, no 
surface rights exist. The claimant must arrange with the soil 
owner for what surface he needs. But the claimant has the 
right to demand the sale or lease of the surface to the extent of 
one unit lode claim, and on equitable terms. 

All claims of all kinds must be registered within 30 days after 
the grant allowing them has been issued. 

Metalliferous alluvials and gravels containing precious stones 
or any other desirable mineral (like monazite, for instance), 
abandoned' mine dumps, slag piles and tailing beds, when on 
alienated land, cannot be located; but when existing on the public 
domain may be worked by anyone without permit or the necessity 
of filing claims, so long as the operations are of a primitive char- 
acter, and do not involve the installation of machinery. 

The procedure for acquiring title to mining claims is substan- 
tially the same for all kinds of claims, and may be summarized 
as follows : 

The ground is first staked provisionally, a post being erected 
at each corner and at the discovery point. Within 100 days 
thereafter the discoverer or his legal representative must present 
himself at the office of the nearest chief local authority and fill 
out a written application in duplicate for the ground. This docu- 
ment must contain a very clear statement as to the situation of 
the claim, its area, the name and legal residence of the owner of 
the land on which it lies (if it is not on the public domain), the 
names of neighboring mines and their owners, and, of course, his 
own name and those of his partners if he has any. A sample of 



56 INTERNATIONAL MINING LAW 

the mineral found must accompany the application. When it is 
finally signed, one of the copies is then returned to the claimant 
with the endorsement on it of the date upon which it was pre- 
sented; while the other, also similarly dated, is forwarded to the 
Chief of the Department of Mines in the capital of the State in 
which the claim is situated. There, after examination, the docu- 
ment is approved, or denied for cause, or returned for further 
information or possibly for some correction. If approved and 
when finally in order, it is advertised for 15 days in the local 
paper if any exists; if not, then by posting on the door of the 
chief local Authority, and by handbills, for the same term. If 
no adverses are filed during the period, the claim is registered. 

Within 100 days after registration the claimant must do enough 
work upon his vein or deposit to disclose its general direction 
along the surface and its dip to the depth of at least 10 meters. 
If this term is not long enough it will be extended. Twenty 
days after the expiration of the term or its extension the claimant 
must apply for the official survey, and deposit the cost of the 
same. Within 20 days after its completion the claimant must 
erect substantial monuments of stone at all corners as given by 
the government engineer. 

Upon a vein already known only one claim may be located by 
an individual. But the discoverer of a new vein is allowed to 
locate two claims upon it, and if he is acting for a company or 
has a partner, he may take three, contiguous or separate. Such 
a "new" vein however must be situated not less than five kilo- 
meters from the nearest registered mining property. 

Upon all registered claims not less than 230 shifts of labor 
must be performed annually. Anyone who can prove that such 
an amount of work has not been done acquires the legal right to 
"denounce" and become the owner of the claim. 

Mining claims have no extralateral rights. But if a miner has 
pursued his vein to his side line and it is carrying ore at that 
place, he may locate the adjoining ground by virtue of the dis- 
covery so made, if it is open for location. Or, if it is occupied 
already by another he is at liberty to follow his vein into the 



LATIN-AMERICAN SYSTEM OF MINING LAW 57 

adjoining claim and extract ore from it until a connection is 
made with the workings of the neighbor. But before so tres- 
passing he is under legal obligations to advise the neighbor of 
the intention, and as soon as connection is made, either by him- 
self or the neighbor, he must cease work and retire within his own 
lines. All ore taken out during the period of trespass must be 
disposed of separately, and the proceeds, after the costs of pro- 
duction and treatment are deducted, are divided equally between 
the adjoining owners. 

A mining claim once allowed and registered conveys all the 
minerals within its lines except those of the third class. These, 
if produced, must be turned over to the surface owner (if any) 
who must pay for the cost of production. 

Surface owners may work any mineral deposit discovered on 
their premises by themselves or their servants or employees, 
without any authority from the government, and without locat- 
ing any claims. But, if they do so, they lose all rights against 
other discoverers and locators. 

Discoverers of valuable deposits of substances of the second 
class on alienated land may locate claims thereon, but cannot 
demand surface rights from owners thereof. If the latter insist 
on taking possession of such claims — as they have the right to 
do — the discoverer must be properly indemnified for his time and 
outlay. 

Surface owners cannot demand or collect indemnification for 
unoccupied land upon which waste from mine operations, slag 
from furnace operations, or tailings from mill operations are 
deposited by present day operators. 

Mining claims of all kinds are accorded the legal standing of 
landed property (real estate), and may be transferred in the same 
ways. If the transfer occurs before registration, the convey- 
ance must be of a public nature, and be advertised in a news- 
paper, or by posting, or by handbills. But after registration 
the transaction is of a private nature, and calls only for the 
recording of the deed of conveyance. 

Exclusive rights for dredging and hydraulic operations are 



58 INTERNATIONAL MINING LAW 

obtainable, and groups of alluvial areas may be consolidated for 
such purposes. But before initiation work 2% of the capital 
raised must be deposited in the National Bank of the Republic 
as a guarantee that adequate machinery will be provided. This 
is returnable as soon as operation begins, which must occur within 
300 days of authorization. 

BOLIVIA 

(Law of November 28th, 1906, with amendments to January 1st, 1917) 

All deposits of the metals and precious stones, also of borates, 
nitrates, iodine, sulphur, coal, mineral oil and gas, peat, asphalt, 
fossil gums, alum, and other substances of industrial use, are the 
exclusive property of the State, whether existing upon the public 
domain or on privately owned property. Limestone, sand, 
gypsum, building stone, and clay when existing upon alienated 
land are the property of its owner. If on public land such sub- 
stances may be made use of by anyone, without government 
permit or liability for taxation. 

The distinction, from a legal point of view, between surface and 
underground realty is strongly emphasized in this law. The 
former is defined as the surface proper, together with such a 
thickness or depth of soil or other material underneath it as may 
be necessary for all kinds of activities except that of mining. 
What is below this varying boundary or frontier is the under- 
ground. The title to this must forever remain in the name of the 
State, but the use of it for mining purposes can become the sub- 
ject of a grant, subject to the prescriptions of the mining law. 
When the surface as above defined contains any mineral substance 
of use or value — excepting the few just listed above — mining 
grants may also be issued by the State for the recovery of the 
same, even though the area has been alienated, unless covered 
with buildings, orchards, enclosed gardens or public parks. 
Other fenced areas in crops are also exempted unless the permis- 
sion of the owner is obtained. But when it is refused the govern- 
ment reserves the right to permit mining operations upon or 



LATIN-AMERICAN SYSTEM OF MINING LAW 59 

under them when proper cause is shown for doing so, and when 
adequate security is given for damages that may result. Furl 1km-, 
in such cases, expropriation may be insisted upon if it appears 
advisable and for the public welfare. 

Prospecting is free to all, but the prospector is under obliga- 
tions to give notice of his intentions to explore where the locality 
to be searched is on alienated land, and on such tracts his opera- 
tions must be limited to excavations not over 10 meters in length 
or depth. When prospecting under a special permit on culti- 
vated land the operations must be concluded within a term of 
30 days, which cannot be extended. 

The unit mining area is the hectare, a square of 100 meters 
on each side. Any number of these, when grouped as a solid 
block, may be applied for as a mining location or claim in a well- 
known mining district, but in a newly discovered district the 
limit is 30 hectares. Distinct discovery of mineral values of some 
kind is a necessary prerequisite to the initiation of a mining title. 
One having been made, the discoverer at once makes applica- 
tion for it "in writing, either in person or by attorney, before the 
Prefect of the Department in which it is situated. This formal 
petition must be made in duplicate, on stamped paper purchas- 
able from the Prefect, must give all information ordinarily 
called for in such a document and must be accompanied with a 
representative sample of the mineral found and a deposit of cash 
sufficient to cover the costs of the application, which are reason- 
able in all details. Priority of application is considered prima 
facie evidence of priority of discovery unless fraud can be shown. 

Upon receipt of the application it is dated and signed by the 
Prefect and all interested parties, the duplicate handed to the 
claimant and the original forwarded within three days to the 
editor of the official government Bulletin at the capital for publi- 
cation during a term of 70 days. Also in a local paper — if any — 
to the extent of at least three insertions at intervals of not over 
10 days. During this publication period all objections to the 
issue of the grant must be formally filed with the Prefect. If 
none appear the claim is officially surveyed, monumented, and 



60 INTERNATIONAL MINING LAW 

registered, and the claimant after paying the first year's taxes 
and all unsettled charges is put into physical possession. . 

Tunnel claims for drainage, discovery, ventilation or trans- 
portation may be secured by the same procedure, but in this case 
no discovery is required. If the proposed tunnel is intended to 
cross under and through any existing grants the permission of 
the owners thereof must be secured in writing, and a copy of an 
agreement with them relating to the disposition of any ore 
encountered during the traverse of their ground be deposited 
with the authorities. 

Concessions for operating metalliferous alluvial deposits, 
abandoned dumps and slag piles, or any valuable mineral occur- 
rence on or in the surface soil, are granted under the same general 
conditions and with the same general procedure as for under- 
surface properties. 

A mining concession once allowed is of the nature of a lease in 
perpetuity, dependent for its maintenance only upon the pay- 
ment of the annual tax, and the reasonable observance of such 
regulations as the law prescribes for the protection of the life 
and limb of employees, and to secure proper sanitary conditions. 
The government exercises no surveillance of any kind over the 
technical operations at the mine, but holds the operator legally 
responsible for the annual tax until he formally gives notice of 
his intention to abandon. 

The annual tax on under-surface metalliferous mines is four 
bolivianos per hectare of surface in the property ; on metalliferous 
placers two bolivianos per hectare; on non-metalliferous minerals 
like baryta, fluorspar, borax, etc., one boliviano; on combustibles, 
50 centavos per hectare, and on abandoned dumps and slag piles, 
nothing at all. These several imposts are payable semi-annually 
in advance on January 1st and July 1st. If not paid within 30 
days after these dates interest at the rate of 9% per annum 
attaches. If not paid within a year plus 15 days forfeiture and 
eviction automatically ensue.* 

* Under normal conditions the boliviano is worth about 40 cents U. S. 
gold. 



LATIN-AMERICAN SYSTEM OF MINING LAW 61 

When the document of a concession is delivered an impost of 
one boliviano per hectare of surface is payable. This is to defray 
the cost connected with entering up the property on the official 
map of the mining district in which it lies. 

Duties are levied on all metals or metallic ores exported. The 
rates vary with the degree of refinement of the product, and the 
market price of the metal or metals it contains. 

When litigation occurs on the question of the ownership of a 
mining property, the courts are prohibited from ordering the 
suspension of mining work for any cause during the progress of 
the suit. Instead they are clothed with the power to take pos- 
session and continue operations under the management of a court 
receiver until the matters at issue are settled. 

The miner owns everything beneath the surface soil within 
vertical planes passing through his boundary lines. Trespass 
beyond these planes to the extent of 10 meters may be punished, 
when proven, as common robbery. 

All surface mining rights on privately owned property must be 
arranged with the soil owner if possible. If not, expropriation 
can be demanded by the miner in the courts to the extent that 
he can show is necessary for the proper working of the ground. 
Mining companies and individual operators are held strictly 
accountable for the lives and health of employees of all grades. 

Surveying, advertising, and registration charges and fees of all 
kinds connected with the acquisition and maintenance of title 
are reasonable. No royalties of any kind are collected by the 
government, or can be demanded by surface owners. 

BRAZIL 

(Legislative Decree of January 6th, 1915. In effect January 1st, 1917) 

For the purposes of the Law all organic or inorganic minerals 
existing upon, in, or underneath the surface are classified as 
Mines or Non-mines, as follows : 

Mines. — Metals, or minerals from which metals may be ex- 
tracted (except iron) , mineral oil, coal, asphalt or other combus- 
tibles, graphite, sulphur and gem stones in veins in rock. 



62 INTERNATIONAL MINING LAW 

Non-mines. — ■ 

Class 1. — Iron ore, salines, nitrates, building stones, sand, 
asbestos, clay, ochres, mica, peat, phosphates and mineral waters. 

Class 2. — Alluvial deposits containing metals or gems. 

Class 3. — Quarries. 

When deposits of substances are found which are not mentioned 
in any of these divisions, it is the duty of the " Superior Council 
of Mines" to classify them. 

Mines belong either to the Republic, the States of the Republic, 
or to the surface owner, if any. In the first two cases if claims 
are located upon them and titles thereto solicited and acquired 
from the proper authorities, such titles convey only underground 
rights, and such surface rights as may be required for the opera- 
tion must be obtained in another and the ordinary way. 

Non-mines, when existing on alienated areas, belong to the 
surface owners of such areas. When upon the public domain 
(unoccupied Federal or State land), they may be acquired by 
purchase of the surface in the ordinary way. 

Surface owners may prospect their ground and work any de- 
posits found therein without any authorization from the govern- 
ment, but their operations must be conducted in conformity 
with the general laws relating to the safety of employees and to 
sanitation. Prospecting on alienated land is not allowed with- 
out the consent of the owner, and when consent is given the 
terms and conditions are matters of agreement between pros- 
pector and owner. 

The business of prospecting in the eyes of the law not only 
consists in looking over a given area and noting outcrops or other 
mineral indications thereon, but includes the development of the 
same by shafts and levels, and the sinking of drill holes. 

When a surface owner refuses to allow prospecting on his land, 
the law provides means by which he may be compelled to permit 
it, or by which the area desired may be expropriated. No 
prospecting license is required for prospecting on alienated land. 

But prior to prospecting — other than "looking over"' — on the 
public domain, a petition must be made to the Minister of 



LATIN-AMERICAN SYSTEM OF MINING LAW G3 

Agriculture, through the Geological Survey Bureau, in which 
the locality it is desired to explore is specifically located and 
described. When this is done it is obligatory upon the Minister 
to grant the license free of charge, and within 30 days from date 
of application. Such licenses are good for a year, with the 
privilege of a year's extension on proper showing by the holder 
that more time is necessary. The license grants the right to 
stake off an area the size of which — within certain limits here- 
after given — is a matter of agreement between the prospector 
and the minister, but may not exceed 100 hectares (about 250 
acres), nor be less than five hectares (about 12J^ acres), excepting 
in the case of river bed alluvials, when the amount allowed may 
be as much as 50 kilometers (about 31 miles) of the stream. Such 
licenses are non-transferable, excepting with the permission of 
the Minister. 

The unit mining claim is five hectares. The maximum number 
of these that may be staked off and applied for as a mining grant 
by an individual for gem stones and the rare metals (gold, silver 
and platinum) is ten, or a tract of 50 hectares, and for all other 
substances 20, or 100 hectares. But in the case of a company 
the permissible area is doubled. 

The maximum term for such grants for either an individual 
or a company is 30 years. But at its end this term may be 
extended at the discretion of the government. Such grants are 
not transferable except with the consent of the authorities, but 
they may pass to one living heir, one living spouse or one living 
partner. 

When the grant is an alluvial one, and is located upon a public 
Federal river, the maximum size is 50 hectares (about 125 acres) 
for an individual, and 100 hectares for a company. 

These grants, once given, carry the exclusive right to the owner- 
ship of all minerals that may be found in them during its term, 
regardless of whether they are mentioned in the grant or not; 
but upon the grantee rests the obligation to advise the authorities 
of all new discoveries. 

A discoverer who has secured a mining grant, and does not 



64 INTERNATIONAL MINING LAW 

wish to work it, or is not able to, and desires to transfer his rights 
to a party willing and able to operate in accordance with tl 
requirements of the law, may do so, and in consideration ma] 
claim the reimbursement of his prospecting expenses to date oi 
transfer, and also, at his option, a lump sum in cash, or an annual 
payment up to 2% of the net profits. 

All mining grants carry the obligation to begin development 
work in earnest within one year of their date, and to continue 
the same with reasonable diligence during their term. 

They also carry the obligation to pay annually to the Govern- 
ment a rental, which is agreed upon when the grant is issued, but 
which cannot exceed 150 milreis (about 15 cents) per five hec- 
tares (or fraction thereof) of the total area;* and in addition a 
royalty, which is also a matter of agreement, but may not be 
over 6% of the net profits. However, neither of these imposts 
become payable until two years of the term have elapsed, which 
two years are free. 

CHILE 

(Law of December 20th, 1888, in force January 1st, 1917) 

The State claims exclusive ownership and control of all mineral 
substances existing upon, in, or under the surface soil, and 
whether on public or private land, except as to coal and other 
combustibles which, when occurring on alienated land, belong to 
the owner of the surface, but must be worked in accordance with 
the provisions of the law. 

Prospecting is free. No license is required. 

Discovery of mineral is a necessary pre-requisite to the filing 
of a claim. 

Mining claims may be located on any unoccupied land, and 
carry with them the exclusive right to utilize the surface within 
their lines for all necessary mining purposes, as well as exclusive 
underground rights, so long as the provisions of the law are com- 
plied with. But when it is desired to locate upon alienated land, 

* Equivalent to about \ x Ai per acre. 






LATIN-AMERICAN SYSTEM OF MINING LAW 05 

the owner thereof must first be secured from any damage that 
might result from the miner's operations. 

Possession is maintained by an annual tax per hectare 
(about 2J2 acres) of area. 

Not more than three mining properties can be located upon 
the same lode or vein, but any desired number may be acquired 
by purchase. 

The party who first reports a new discovery is considered the 
proper claimant, unless fraud is proven. 

The act of registration consists of an appearance before the 
local judge, either personally or by agent, to whom all particulars 
of the find are reported, and a sample of the ore is given. If the 
discovery has been made in a new mining area, that is, one dis- 
tant five kilometers (about 3}i miles) or more from any previous 
discovery, the finder thereby acquires the exclusive right, for the 
next 50 days, of locating a total of three mining properties on 
the same vein or deposit. But if the find is within five kilometers 
of mines already known, he may locate but one mining property 
on the vein. 

Within 90 days after reporting the discovery (which is the act 
of registration) a shaft at least five meters deep must be sunk 
on the ore. 

The unit mining area is the hectare (about 2}^ acres), measur- 
ing 100 meters (about 300 ft.) on all four sides, and rectangular 
in shape. No more than five of these, laid out contiguously in 
a block, nor less than one, may constitute a mining claim or 
property, on veins or deposits of the metals; but for coal, salt, 
salines, oil and other economic minerals, up to 50 may be taken 
as a claim. 

After the shaft is sunk to the required depth, monuments or 
stakes must be erected at all corners, and before the expiration 
of the 90-days term the claimant must appear before the district 
Judge and ask for an official survey, at his own expense. When 
this is made, and the corner stakes correctly set, the claimant is 
formally placed in possession, and his title becomes incontestible, 
except by the State for failure to pay the annual tax, or to operate 



66 INTERNATIONAL MINING LAW 

in accordance with the provisions of the law. After survey and 
final demarkation, conveyancing rights are complete. 

The annual tax is $10 per hectare or fraction thereof on metal 
mines, and $5 per hectare on all others. * But if the mine owner 
in the first case happens also to be the surface owner, the annual 
tax is only $5 on metal claims. These taxes are due in advance, 
and must be paid sometime in the month of March. If not paid, 
the property is sold at auction, and all money received over the 
amount due the government and the costs of sale, is returned 
to the former owner. If there are no bidders, or if the highest 
bid is less than the amounts due, the ground is declared open 
to location by anyone. 

COLOMBIA AND PANAMA 

(Law of January 1st, 1868, with amendments to January 1st, 1917) 

The mineral resources of the country are owned as follows: 
The Nation is the owner of precious stones and of rock salt, 
whether occurring on the public domain or on privately owned 
land. The various States of the Republic own all deposits of 
the precious and base metals that occur within their boundaries, 
also all other desirable mineral substances, when existing upon 
unoccupied land; but when upon alienated land the latter are 
the property of the owners thereof. 

The Federal government will not grant to individuals the 
right to search for or work deposits of precious stones or rock 
salt, but will consider propositions from companies incorporated 
under the laws of the Republic, and sufficiently capitalized. For 
all other mineral substances existing upon unoccupied land, ap- 
plication must be made to the Governors of the States. 

Prospecting is free. The maximum size of the unit mining 
claim for veins and lodes and for any other kind of ore deposit 
in rock in place is 600 meters in length by 240 meters in width 
(about 1800 X 720 ft.), and contains therefore about 30 acres. 

* Under normal conditions the Chilean dollar is worth about 40 cents 
in U. S. gold. 



LATIN-AMERICAN SYSTEM OF MINING LAW 67 

The alluvial, dredging, and hydraulic claim unit is a square 
measuring three kilometers on each side, or a rectangle measuring 
two kilometers by five kilometers (about 2470 acres). 

In staking off lode claims the measurements must be made 
upon the surface of the ground, and not upon a horizontal plane. 

The legal holder of a mining claim of any kind has exclusive 
possession and usage of the surface within his lines, and of all 
substances found vertically below the area so enclosed. No 
extralateral rights are recognized. 

The discoverer of an entirely new lode has the right to locate 
three contiguous claims upon it. In all other cases only one unit 
claim may be taken by an individual on any one lode. 

The process of acquiring a title to a lode claim consists first in 
erecting a post or monument at the place of discovery, upon 
which a notice is posted giving the name of the locator, the date 
of discovery, the name to be given to the claim, and an approxi- 
mately correct statement of the position of the corners with re- 
gard to the discovery point. Immediately thereafter the claim- 
ant, either personally or by a duly authorized representative, 
appears before the chief local authority of the district — com- 
monly called the Jefe Municipal — and formally applies for the 
claim. To this official must be given all the items of information 
above enumerated, together with such a description of the sur- 
roundings as will serve to identify the claim with certainty. All 
this is entered in a book in the Jefe's office, and signed by the 
claimant, who at the same time deposits a recording fee of 50 
cents. Two copies are made of this document, one of which is 
given to the claimant, while the other is at once dispatched to 
the State authorities. 

The locator then proceeds to stake or monument his claim 
carefully, and in due time receives a notice from the Jefe that 
his application, has been either allowed or refused, according to 
whether the State authorities find the ground is open for location 
of claims or not. If it is allowed, he must pay a title fee amount- 
ing to $4 for a gold or silver claim, or $2 for a base-metal claim. 
If it is a platinum claim the fee is $25. When these charges are 



68 INTERNATIONAL MINING LAW 

paid the Jefe personally or by deputy places the claimant in 
physical possession of the ground. Thereafter the title is main- 
tained by reasonable working conditions, and by the payment of 
an annual tax of $1 per unit claim or fraction thereof. 

COSTA RICA 

All desirable mineral substances, whether existing in the surface 
soil or in the underlying rock, or whether found on the public 
domain or on privately owned land, are under the exclusive con- 
trol of the government as State property, and may only be 
worked under the provisions of the mining law. 

Prospecting is free on the public domain and upon all unoccu- 
pied alienated land. When the latter is in crops, or covered with 
buildings or other surface improvements, the consent of the 
owner must be obtained, if possible, before explorations are be- 
gun. If it cannot be freely secured the matter may be brought 
to the attention of the authorities, who will enforce the rights 
of the prospector and miner to the extent which, under the cir- 
cumstances seem to be warranted. Soil owners may not claim 
any rights on minerals discovered by others on or under their 
property, but may do so by virtue of discoveries made by them- 
selves or at their expense. They must be equitably compensated 
for all surface used by explorers, either through rental or pur- 
chase, and for all damages resulting from their operations. 

The unit area for mining claims is a horizontal rectangle meas- 
uring about 275 feet in length along the assumed line of outcrop 
of the vein or deposit by about 550 feet across it, and conveys no 
extralateral rights. The discoverer of a new mining field may 
locate three such claims, adjoining or separated, along the line 
of the main vein found, but when they are separated the dis- 
tances between them must be not less than 275 feet or accurate 
multiples of that figure, so as to permit of the location of full 
length intermediate claims. He may also locate one such claim 
upon each minor or secondary vein found by him in such a new 
field. In an old field only two such claims may be taken up by 



LATIN-AMERICAN SYSTEM OF MINING LAW 69 

any one explorer, but he may secure as many others as he desires 
by purchase. 

Application for territory located is made before the Judge of 
the local court in person or by attorney, and after due advertise- 
ment and a public hearing if necessary, if no ad verses are filed or 
sustained the claimant is given temporary possession for sixty 
days, during which period he is expected to sink a shaft at least 
30 feet in depth. An extension of this time will be given for good 
cause shown. When the prescribed work is done the premises 
are examined by the government engineer, and if the develop- 
ments are approved by him a survey is made (upon deposition 
of its cost by the claimant), the location of all corners indicated 
by temporary stakes and his report — accompanied with two 
copies of his map — filed with the authorities. Thereafter, as 
soon as the authorities are formally notified that permanent 
monuments have been erected at all corners indicated by the 
engineer, a Certificate of Possession is made out, and after a final 
inspection of the premises by the engineer the same is delivered 
if he reports that everything is in order. 

The title so granted is of the nature of a lease in perpetuity, 
depending for its maintenance upon reasonably continuous and 
energetic mining operations. If for any cause there is complete 
suspension of work during the whole of a calendar year, the gov- 
ernment reserves the right to declare the franchise forfeited. 

The government makes no claim for royalties of any kind, and 
there are no annual taxes payable on the claims other than those 
due on all other forms of real estate. 

CUBA 

(Law of December 29th, 1868, amended in June 24th, 1871, declared valid 
by decree of October 10th, 1883 and June 27th, 1884. In force without 
change on January 1st, 1917). 

For the purposes of the law all mineral substances are separated 
into three classes, as follows: 

Class 1. — Earths, silicious rocks, slate, abrasives, building 
stone, limestone, gypsum, sand, marl, clay and similar substances, 



70 INTERNATIONAL MINING LAW 

when existing upon the Public Domain, may be filed upon by any 
one ; but when upon alienated land they are considered as belong- 
ing to the owner of the surface, who may work them without 
liability to the State or the provisions of the law, except such as 
refer to the safety of the employees, and to matters of sanitation. 

Class 2. — Metalliferous alluvials (placers), mineral paints, 
slag and scoria of old furnaces, peat, pyrite, bauxite, fluorspar, 
soapstone, kaolin and brick clay, if on the Public Domain, may 
also be filed upon by anyone. When they are found on alienated 
land the State reserves the right to expropriate, and allow the 
first claimant or applicant to own and work them, unless the 
surface owner is already mining them. Parties who secure such 
ground on alienated land must pay a tax of two pesos (about 
$1.00) per hectare (about 2}4 acres) per annum to maintain their 
title. But when any of these substances are worked by the sur- 
face owner he is not called upon to pay any tax. 

Class 3. — Metalliferous veins and deposits of all kinds (except 
pyrite), coal, mineral oil, asphalt in its various forms, salines 
(whether found in a solid condition or in solution as brines), 
copperas, sulphur and precious stones, whether on the Public 
Domain or on alienated land, may be filed upon and operated as 
mining claims, and will be granted to the first applicant in good 
faith. 

The law recognizes two kinds of real property, viz.: 

(A) The soil, which is understood to mean the surface, and 
such a thickness or depth of it as may reasonably be required 
for purely surface activities such as cultivation, ditches and 
reservoirs, buildings and their foundations, and all others dis- 
tinct from that of mining. 

(B) The subsoil, which expends downward indefinitely from 
where the soil ends. 

The former, where not already alienated, is the Public Domain. 
This may be sold by the State, but for surface usage only. The 
latter cannot be sold, but the State reserves the right to allow 
mining claims to be located upon any part of it, and claims so 
located and approved according to the provisions of the law con- 






LATIN-AMERICAN SYSTEM OF MINING LAW 71 

stitute a title in perpetuity, so long as the annual mining tax is 
paid, and the property is operated in accordance with the pro- 
visions of the law relating to the safety of employees and matters 
of sanitation. 

Prospecting privileges are free on the Public Domain to all 
individuals of legal age, whether native or foreign born; also on 
alienated land (excepting under buildings, fenced and cultivated 
areas, and public property generally, such as towns, parks, 
cemeteries, etc.) if the permission of the surface owner is first 
obtained. If refused, or unreasonable conditions are required, 
the law provides means to compel fair dealing. But no excava- 
tions designed as a search for mineral may exceed 10 meters 
(about 30 feet) in length, width, or depth in any one place, and 
before making such excavation notice must be given to the local 
authority of the intention, and the locality to be explored accu- 
rately described. 

The unit mining area is the hectare (about 2}i acres), laid out 
as a square, with sides 100 meters (about 300 feet) long. It 
conveys no extralateral rights. Any number of such units — but 
not less than four — may be located as a mining claim, provided 
they adjoin on sides, and leave no vacant spaces between. No 
mining claims, however, may be located on substances of the 
first class. When located on substances of the second class they 
do not extend downward indefinitely, but terminate when the 
surface payable material ends. But when located on substances 
of the third class they cover all material found vertically under- 
neath them as long as the claimant wishes to follow them into 
the earth. 

The steps to be taken in making a location are as follows: A 
written application on a special blank form must be made to the 
local chief authority, by the claimant or his legal representative, 
giving all particulars, and a sample of the mineral found. Tem- 
porary corner stakes may be set up before doing this. If, on 
examination, the application appears to be on vacant ground, the 
local authority will cause it to be advertised for a period of 30 
days, and if no adverse claimant appears within that term, an 



72 INTERNATIONAL MINING LAW 

official survey is ordered and monuments erected at each external 
corner of the group of unit claims. The advertising and survey 
are at the cost of the applicant. Finally, and within a period 
not in excess of four calendar months from the date of the appli- 
cation, the title will be registered upon payment of the following 
charges, which include the annual tax for the first year. 

For a claim covering 12 hectares (about 30 acres), or less, 80 
pesos (about $40). 

For a claim covering over 12 hectares, and not in excess of 100 
hectares, 80 pesos for the first 12, and 1% pesos for each of the 
remaining ones. 

For a claim covering 101 hectares and not over 500 hectares, the 
price for 100 hectares, plus 1% pesos per hectare for all above it. 

For a claim covering over 500 hectares, the price for 500 
hectares plus 1}^ pesos per hectare for all above it. 

A claim so registered is incontestable in perpetuity, so long 
as the annual taxes are promptly paid, and the provisions of the 
law relating to the safety of employees and sanitation are com- 
plied with. 

Annual taxes are as follows: 

For precious stones and the substances of the 3rd class (except 
iron), 5 pesos per hectare (about $2.50). 

For iron, and substances of the 2nd class, 2 pesos (about $1.00) 
per hectare. 

Mining claims become forfeited when the annual tax is in 
default for a calendar year plus 15 days. They are then sold at 
public auction, and all cash received at the same, less amount of 
taxes due plus 5%, is paid to the former owner. If after three 
auctions no buyers appear, the ground is declared open and free, 
and may be appropriated by the first applicant for it. 

ECUADOR 

All efforts on the part of the author to secure a copy of the 
mining law of this country has been futile up to date of going to 
press. No publication of them has been made since 1886, and 
the edition then printed has been exhausted for years. Although 






LATIN-AMERICAN SYSTEM OF MINING LAW 73 

Ecuador has within its boundaries more than 400 miles in length 
of the Andean range, and several places in that distance are 
known to be well mineralized, yet the discoveries and develop- 
ments so far have not proved as attractive as those to the north 
in Columbia or to the south in Peru. Consequently the mining 
industry of the republic has never been notable, and is regarded 
by its citizens as of minor importance. This perhaps accounts 
for the indifference as to the mining laws. Such as exist have 
been inherited from Columbia and Peru, and consist mainly of 
legislative decrees placing in force the regulations and customs 
in effect when the country was a Spanish colony, coupled with 
amendments enacted hastily and without much knowledge of or 
regard to the needs of the industry. The result is a body of laws, 
scattered — like those of Brazil — through the statute books, very 
uncertain and confusing in detail, and often contradictory. Un- 
til this unfortunate state of affairs is rectified attempts to conduct 
mining operations in Ecuador will labor under many unnecessary 
difficulties. 

GUATEMALA 
(Law of June, 1908, with amendments to January 1st, 1917) 

For the purposes of the law all mineral substances are divided 
into three classes, viz., Mines, Alluvials, and Quarries. 

Mines.- — Veins, beds, segregations or deposits of any mineral 
nature occurring in rock and differing in nature from its sur- 
roundings, and carrying the metals, or such substances as 
sulphur, coal, nitrates, salt, spars, mineral oils and gas, asphalts, 
etc., belong exclusively to the State, whether occurring on public 
or on private land, and mining claims can be located upon them in 
the first case in the ordinary way (excepting as to sulphur and 
nitrates, where the government reserves the right to impose 
special conditions upon their operations). To locate upon 
private land the consent of the owner must first be obtained, but 
if this is refused, or unreasonable considerations are demanded, 
the law provides methods by which just terms may be secured. 
Mines constitute a real property, separate from the surface, 



74 INTERNATIONAL MINING LAW 

though both under certain conditions may belong to the same 
owner, and their transfer is effected by the usual procedures pro- 
vided in the Civil Code. But in addition, a document conveying 
a mining title must pass through the office of the Mining Recorder 
of the district in which it lies. This document also passes title 
to buildings, machinery, apparatus, stores, animals, vehicles and 
all other such things found upon or properly appurtenant to the 
claim at the date of transfer. The holder of a mining claim must 
operate in accordance with the provisions of the law concerning 
the safety of employees and sanitation. 

Alluvials. — Loose soil containing metals or minerals of value, 
peat, ochres, precious stones, etc., when on the surface of privately 
owned property, belongs exclusively to the owners thereof, who 
may legally refuse to grant mining rights thereon. But if the 
owner desires to work these himself, or lease, or sell part or all of 
such areas for mining purposes, he must locate claims, and there- 
after must operate in accordance with the provisions of the law. 
When found on the public domain they are open to location by 
any one. Gravel deposits containing gold or other metals in the 
native condition, or as disseminated ores (like cassiterite), are 
freely open to working by any one without the filing of claims, 
so long as the methods of operation are of the primitive kind, as 
with the pan, rocker, long torn, etc. But when it is desired to 
treat such beds on a large scale and with mechanical appliances 
such as by hydraulicing or dredging, special grants may be 
applied for and obtained, which confer exclusive rights over large 
areas. Mining claims of this class that have been located on 
private land and worked, and then abandoned or forfeited, may 
be entered and denounced as if on unoccupied public domain. 

Quarries. — This class includes building stones, limestone, clay, 
sand, marl, phosphates and other fertilizers. When existing on 
privately owned land they belong to the surface owner, who may 
not be compelled to work them or to give the right of working 
to others. If on public land they may be acquired by the pur- 
chase of the surface from the government, as in the case of any 
ordinary kind of real estate. 



LATIN-AMERICAN SYSTEM OF MINING LAW 75 

Prospecting- is free to all individuals of legal age, whether citi- 
zens or aliens, on both public and private land, except where the 
latter is in crops, or is covered by buildings or enclosed, when the 
consent of the owner must first be obtained. If it is refused, or 
unreasonable compensation asked, the matter may be referred 
to the courts, who will issue an exclusive permit good for two 
months, on a circular area with a diameter of 400 meters. A 
longer period will be given if necessary. Proper security must be 
furnished as compensation for possible damage. 

Other areas exempted without special permit from the Director 
General of Mines are the environs of a city, town, or village, the 
vicinity of railroad lines, canals, aqueducts, watering places, 
springs, and reservoirs. 

The unit mining claim is a rectangular parallelogram, with a 
superficial area of ten hectares (about 25 acres), and so laid out 
that two of its sides have each a length of at least 100 meters 
(about 300 feet). If a discovery is made at a distance of five 
kilometers (about Z% miles) or more from any registered mine, 
the discoverer is entitled to locate and stake off three such claims, 
but within that area only one. When a prospector has made a 
discovery and staked his claim upon it, his right of location upon 
that vein is exhausted. But he may acquire by purchase as 
many more claims as he may desire. 

The rights acquired by a location include such use of the sur- 
face as may be necessary, but not the right to mine and utilize 
the loose soil thereof. The mining right begins at the surface 
of the solid rock underneath the surface debris, extends downward 
indefinitely, and is limited within vertical planes passing through 
the boundaries. Discovery of ore is necessary before a claim 
can be staked or registered. 

The man who first reports a discovery to the chief official of 
the district (Jefe Politico) is assumed to be the discoverer and 
rightful owner. The application must be made personally and 
in writing on a blank provided for the purpose, and immediately 
upon its provisional acceptance the claimant must return to the 
premises and perform such preliminary development work as will 



76 INTERNATIONAL MINING LAW 

prove the existence of a mineral deposit at the assumed place of 
discovery, and enough to afford some clue as to the kind of min- 
eral that may be expected therefrom. Fifteen days are allowed 
for this, and for the staking of the claim. Meantime the appli- 
cation is forwarded by mail to the Director General of Mines. 
The latter then orders an examination of the premises, and if the 
facts stated in the application are, in a general way, verified, the 
claim is provisionally allowed while public notice is being given 
of it either by publication for at least three times in the official 
newspaper of the region — if there be any — or by placards posted 
on the outside of the office of the Jefe Politico, which must 
remain displayed for at least thirty days. Within this period of 
public notification objection can be made to the application by 
any one. Also during this time enough additional development 
must be made by the claimant to give further data as to the 
nature of the deposit, the metals it will produce, and, if a vein, 
its angle of dip. If the find is of the nature of an alluvial deposit, 
or a bedded vein like coal, these details must be fairly well dis- 
played. If the period of thirty days is not sufficient for the pur- 
pose, an extension of an equal amount will be granted by the 
Jefe. If all the proceedings are satisfactorily concluded, the 
papers and proofs are forwarded to the Minister of Public Works, 
who orders a survey — at the expense of the claimant — after which 
a Certificate of Ownership is issued to the claim holder and he is 
formally put in possession. This "certificate" is not of the 
nature of a deed, but simply grants exclusive possession and 
usage of the premises so long as the terms, conditions, and restric- 
tion of the law are complied with. Claims so acquired cannot 
be abandoned without first giving formal notice of the intention 
to the Director General of Mines, and paying the cost of a 30 
days' advertisement in the Official Gazette. 

A claim may be adjudged to have been abandoned and open 
for relocation by another party if for a period of six consecutive 
months no work by at least four laborers simultaneously has 
been in progress upon it; or if for a total series of 12 months out 
of 24 no such labor has taken place; or if during the first year of 



LATIN-AMERICAN SYSTEM OF MINING LAW 77 

possession and usage the openings into and throughout the mine 
have not been put in a safe condition. The procedures connected 
with the denouncement of an abandoned, deserted, or forfeited 
claim are substantially the same as those of locating a new 
one. 

If a vein or deposit has been pursued to the boundaries of a 
claim, and the ground beyond the boundary is unoccupied, the 
vein owner may locate and take possession of another 10-hectare 
claim alongside of his own, and may follow his vein into and 
through it. But if the ground into which his vein passes is. 
legally occupied, he is not only under obligations to stop 
at the line, but must inform his neighbor of the conditions 
existing. 

Legally incorporated companies may acquire by location a 
claim of a maximum size of 60 hectares, if they or their agents 
are the discoverers thereof, and if the new mine is distant five 
kilometers or more from the nearest registered mining property; 
or one of 40 hectares if the discovery is within that distance, and 
is really on a new vein. Or if a company denounce an abandoned 
or forfeited claim, the new claim that it applies for may have the 
areas just given, according to the conditions stated. This pro- 
vision does not apply to partnerships, nor to companies having 
less than three shareholders. 

Along the land and water frontiers of the Republic there is a 
zone in which mining claims can be located, denounced, or 
purchased only by native-born Guatemalans, or naturalized 
citizens. 

Until June 23rd, 1923, the importation of mining machinery, 
and of supplies not producible or obtainable in the country, is 
free. Also, no export duties will be levied on ores previous to 
that date. There are no royalties on any metallic product, nor 
any other kind of impost, except the annual payment of 6 pesos 
per 1000 pesos of valuation to the National government. A 
Guatemalan peso is worth about 22J^c. U. S. gold. Mining 
property in the republic is assessed at about 40% of its true 
valuation. 



78 INTERNATIONAL MINING LAW 

HONDURAS AND NICARAGUA 

The mining laws of these two neighboring Central American States are 
practically identical. That of Honduras was promulgated in 1908, and 
that of Nicaragua in 1906. This digest includes amendments to date of 
January 1st, 1917. 

The Nation claims the sole and exclusive ownership of all 
kinds of deposits of the metals, and also of sulphur, saltpeter, 
precious stones and combustibles (coal, oil, gas, asphalt, etc.), 
regardless of whether any of these are found on the public domain 
.or on alienated land. 

Prospecting is free, and any one of legal age, whether native or 
foreign born, may search for minerals and locate claims thereon, 
except sulphur, saltpeter, and combustibles. These three are 
also open for mining operations, but only by special arrangement 
with the national Executive. The State will not sell the land 
in which mineral substances are found, but grants exclusive 
possession and right of working so long as the annual mineral 
tax is promptly paid in advance, and the other provisions of the 
law fully complied with. 

All other mineral substances belong to the owner of the surface. 
If found on the public domain they may be appropriated and 
worked by any one without the formality of filing claims; or 
exclusive ownership in fee simple may be obtained by purchase 
of the surface from the government in the ordinary way, or the 
State will grant exclusive rights to operate on a royalty basis, 
without purchase of the surface. 

Metalliferous alluvials found in the channels or on the banks 
of streams, on either public or private land, may be worked by 
any one without the necessity of filing claims, so long as the 
operations are of a primitive nature, and so long as no injury is 
inflicted upon surface owners. Or, exclusive rights may be ob- 
tained by filing claims. The latter procedure is required in opera- 
tions involving the use of machinery, such as dredgers and 
hydraulic plants. 

Mine dumps, tailings deposits, and slag piles belong to the 
properties from whose ores they were derived. But as soon as 



LATIN-AMERICAN SYSTEM OF MINING LAW 79 

such mines or furnaces are legally forfeited or abandoned their 
waste deposits are open for location by anyone. 

When privately owned land is fenced or under cultivation, or 
fevered with buildings, reservoirs, or any other artificial struc- 
ture, the permission of the owner must be obtained before it can 
bo prospected. If permission is refused, the matter can be 
referred to the local Judge, whose decision is final; if granted, the 
time allowed cannot exceed 70 days, and the prospector must 
jive security for any damage that may result. 

The unit mining claim is the hectare (about 2% acres). Any 
number of these up to five may be taken as a " claim" or "loca- 
tion." The discoverer of a new vein distant four kilometers 
(about 2}<2 miles) or more from any other registered mine may 
locate three claims upon it, together or separate, and he has ex- 
clusive rights for a term of 50 days to make his selections. Only 
one claim can be located by other parties on this vein or upon any 
vein of which they are not the original discoverers, but any num- 
ber may be acquired by purchase. 

The procedure for acquiring title is as follows : The discoverer, 
either personally or by a duly authorized representative, appears 
before the nearest local authority (generally the Jefe Politico) or 
Judge, and announces his discovery, describing the locality and 
surroundings carefully, giving his name, those of his partners 
(if any) , the name to be given to the mine, and presenting a sam- 
ple of the mineral found. This information is at once recorded 
in a special book, and is dated and signed by the discoverer or 
his agent, and a certificate to that effect is given by the recorder 
to the claimant. The latter then returns to his claim and within 
90 days is expected to sink a shaft at least eight meters (about 
25 feet) in depth, and to do any other work that may be neces- 
sary to display clearly the course of the vein, its probable angle 
of dip, its thickness, and the character of ore it carries. Also in 
the same period he must lay off his claim provisionally, setting 
temporary stakes at all corners and at the discovery point. If 
a longer term than 90 days is required for the completion of these 
details it will be granted on application. 



80 INTERNATIONAL MINING LAW 

While he is doing these things his preliminary declaration is 
being published, three times at ten-day intervals in the local 
newspaper, if any; if not, the advertising is accomplished with 
handbills, and by posting on the doors of the Court House. The 
papers then go to the Judge of the District Court. At the end 
of the 90-day period — or its extension — the claimant must ap- 
pear again in person or by attorney before the local Judge, and 
apply for an official survey, and deposit the estimated cost of . 
the same. This will be made by a government surveyor, who, 
in the presence of the claimants and as many of the neighboring 
owners as will come, and two witnesses, lays off the ground by 
deciding first upon the width allowable. This dimension is 
based upon the dip of the vein, as follows: If the dip — from the 
horizontal — is 65 to 90 degrees, the width cannot exceed 100 
meters (about 300 ft.). 

If from 60 to 65^ degrees 115. meters (about 350 ft.) 

If from 50 to 60 degrees 135 meters (about 400 ft.) 

If from 45 to 60 degrees 165 meters (about 500 ft.) 

If from 30 to 45 degrees 200 meters (about 600 ft.) 

The length, taken along the line of strike, will be such a measure 
as, multiplied by the width as determined by the surveyor, will 
give the claimant the number of hectares he desires to take. All 
corners are indicated by the surveyor, whose formal report and 
map go to the local Judge and are registered. A copy of this 
second record goes to the claimant and constitutes his title. The 
latter must immediately erect substantial monuments at all 
corners indicated by the surveyor, and maintain them in good 
order continuously. 

Titles are maintained in force, first, by the payment of an 
annual tax of 5 pesos (about $2.50) per hectare, due during the 
month of January; and second, by work on the property. Legally 
this labor must be continuous, and by not less than four men, ex- 
cepting on holidays; but this regulation of the law is interpreted 
with great liberality by the authorities, so that any claimholder 
who is reasonably energetic in his operations will not be interfered 
with by them. 



LATIN-AMERICAN SYSTEM OF MINING LAW 81 

A mining claim in good standing carries all the minerals found 
in it, and conveyancing rights are complete after final registra- 
tion. All transfers made before that must be advertised. 

In the case of alluvial claims the dimensions allowed are what 
the claimant finds necessary to cover the ground he desires, up 
, to a total of five hectares (about 12^ acres). The law makes 
satisfactory provisions for tunnel rights for drainage, discovery 
ami working purposes, grants rights of way through mining 
claims, and compels owners of mines drained to contribute to its 
maintenance. 

Companies or partnerships who desire to secure exclusive 
prospecting rights over large areas outside of established mineral 
districts, may do so to the extent of 2000 hectares (about 5000 
acres) at an annual cost of 50 centavos (about 25 cents) per 
hectare (20 centavos in Nicaragua). Such a concession carries 
underground rights only. Within the limits of the grant, and 
within the term of six months (one year in Nicaragua), a tract 
not to exceed 200 hectares (100 in Nicaragua) may be selected 
for surface usage, and used as a mining claim as long as desired 
by the payment annually in advance of the tax of two pesos 
(about $1.00) per hectare of such surface, coupled with com- 
pliance with the other terms of the concession as the same 
have been agreed upon, which vary in each case with the condi- 
tions and circumstances of the grant. 

There is' an export duty of 5 % on gold and silver, but not on 
any other metal or substance. 

Imports of mining and ore-reduction machinery, and mining, 
milling, and smelting supplies of all kinds are free of duty. 

MEXICO 

(Act of 1892, with amendments to January 1st, 1917) 

The mineral substances placed under the provisions of this law 
are of two classes, to wit: 

A. The metals, except certain metallic oxides known as mineral 
paints, and also excepting alluvial tin deposits. 



82 INTERNATIONAL MINING LAW 

B. Precious stones, rock salt and sulphur. 

To acquire the right to work deposits of these, which, wherever 
found are -regarded as the property of the Republic, regard- 
less of whether the surface rights have been alienated or not, 
claims must be located and registered in accordance with certain 
formalities. 

Mineral fuel and oil, asphalt, natural gas, building stone, clay 
and earthy substances of all kinds, if found on territory the sur- 
face rights of which have passed from the government to indi- 
viduals or corporations, may be freely worked by the latter (un- 
less already applied for by another party), without the necessity 
of filing claims upon them, but must be operated in accordance 
with all the other provisions of the law. If other parties than 
the surface owners discover and desire to operate deposits so 
located, they must not only file claims upon them, but must 
obtain the consent of the surface owner. If an equitable ar- 
rangement cannot be effected by direct negotiations with the 
owner, the law provides for the condemnation of the land through 
proceedings in the Court of First Instance of the locality. 

Prospecting is free to all inhabitants of the Republic on the 
Public Domain, and also on lands the surface rights of which 
have been alienated. But, excepting in the case of drill holes, 
excavations of a greater depth or length than 10 meters (about 
30 feet) are prohibited on privately owned land, before the loca- 
tion and recording of a claim. 

Upon a discovery being made on privately owned land, or at 
the inception of operations thereon which are expected by the 
explorer to result in a discovery, a notice must be posted on the 
premises, and a copy of it filed with the local representative of 
the Department of Fomento, in which the name of the applicant, 
the date of the posting of the notice on the ground, and the size 
of the claim desired shall be mentioned. When this is done the 
claimant acquires the exclusive right, for three calendar months, 
to carry on exploratory work on the premises so described. 

The unit mining claim on the surface is a horizontal square, 
measuring 100 meters on each side, and containing therefore 



LATIN-AMERICAN SYSTEM OF MINING LAW 83 

about 2 1 2 acres. Any number of such units may be located, 
either compacted in a group, or separately. 

Immediately after indication of the bounding lines on the sur- 
face by suitable monuments at the corners, application for regis- 
tration is required. A survey of the premises by a government 
engineer, and a publication in the nearest paper follow. If, dur- 
ing the prescribed period of the latter no adverse claim or claims 
are presented, the application is approved by the Department 
of Foment o, and thereafter the title of the claimant is absolute 
so long as the annual taxes are paid. 

This annual maintenance tax is 12 pesos (about $6.00) per 
unit area, per year, payable in installments of 4 pesos each, every 
four months, in advance. 

There are moderate State, County (partido) and municipal 
taxes on gross output. 

PERU 

(Law of March 23rd, 1909, amended to date of January 1st, 1917) 

For the purposes of the law all mineral substances are divided 
into three classes, as follows : 

Class 1. — Building stones and other structural material, abra- 
sives, gypsum, marl, pottery and brick clay, mineral paints, 
pyritous, aluminous and magnesian earths, limestone, phosphates 
and peat. These, when found on the public domain, may be 
acquired by purchase of the surface in the ordinary way from the 
government. When occurring on alienated land they belong to 
the owners thereof, and the right to operate upon them may be 
had only from them. 

Class 2. — Guano, saltpeter, sulphur, borax, rock salt, alkali 
beds and mineral springs. These belong exclusively to the gov- 
ernment, no matter where found, and the right to work them can 
be obtained only by direct negotiations with the authorities. 

Class 3. — All other substances. These are subject to the pro- 
visions of the mining law. They belong to the Nation as a 
whole, whether found on public or on private land, and cannot 
be alienated. But the right to possess and work them in per- 



84 INTERNATIONAL MINING LAW 

petuity may be acquired by any one capable of holding property 
in the Republic, whether native or alien, who makes proper appli- 
cation, who operates in accordance with the provisions of the 
law, and who pays the annual mining tax. 

Prospecting is freely permitted on all lands whether publicly 
or privately owned, except when fenced, cultivated, or built 
upon, in which cases the consent of the owner must first be ob- 
tained. If this is refused the government reserves the right — 
for sufficient cause — to compel consent, excepting under houses, 
orchards and gardens. On all other privately owned land the 
prospector, upon giving the owner reasonable security for possible 
damages, may explore at will. 

Exclusive prospecting areas, called " Provisional Claims" may 
be obtained on the public domain. Their size may not be less 
than 140 hectares (about 350 acres), nor more than 1400. They 
must be located not less than 5000 meters from any existing min- 
ing property. Their term is one year, with the privilege of one 
renewal of equal length. 

Mining claims located upon the public domain convey both 
underground and surface rights within the limits of their lines. 
But when placed on privately owned land the underground rights 
only are conferred, and the locator must arrange with the owner 
for such surface as he may need. Ample provisions are made in 
the law to protect the interests of the miner in this respect. 

The unit lode mining area is a horizontal rectangle 200 meters 
long and 50 meters wide (about 2 acres), the length to be disposed 
along the supposed line of strike. Vertical boundaries and no 
extralateral rights. For alluvial deposits the unit area is a 
square measuring 200 meters on all sides (about 8}i acres). 
These units in both cases are called "pertenencias." A " claim' ' 
can consist of any desired number of these pertenencias not in 
excess of seventy. In locating a claim the units must be contigu- 
ous along sides, and must be so grouped as to form a rectangular 
area the long sides of which are not greater than ten times the 
length of the shorter sides. 

The annual tax for lode claims is 30 soles (about $14.50) per 



LATIN-AMERICAN SYSTEM OF MINING LAW 85 

unit or pertenencia contained, payable in advance in two equal 
installments on or before the 30th of June and the 31st of Decem- 
ber of each year. The tax for prospecting or " provisional" 
areas is one sole (about 50 cents) per hectare of area per annum, 
payable in advance. If the annual tax is in default for any period 
loss than six months the property may be redeemed by the 
addition of a penalty of 50% of the amount due. If it is in 
default for a year the penalty is 100%. After that, it is open 
Cor denouncement or location by others. 

The procedure for acquiring a claim is as follows: The appli- 
cant, having first set provisional corner stakes (no discovery 
appears to be necessary) makes application before the local gov- 
ernment authority on a form specially provided, which may 
be purchased for five soles. Within three days of the date of 
this document the authority delivers to the claimant a certifi- 
cate which grants provisional possession and usage of the 
premises applied for pending the proceedings for a definite 
title. During the next 30 days the application is advertised 
locally, and during the following 90 days an advertisement 
is carried in the official government Bulletin published in the 
capital of the Republic. During these 120 days all protests 
to the application must be filed. If none appear, a day is set — 
after six days of further local advertising — for the official survey. 
This being made, and no adjoining or neighboring claimants 
having objected to the lines of the survey, the applicant is form- 
ally placed in possession of the area, and given a written document 
by the government certifying to his exclusive right to the claim, 
together with a copy of the map made by the surveyor. These 
documents are then registered, whereupon the title becomes 
indefeasible except for non-payment of the annual tax or non- 
compliance with other provisions of the law. All expenses of 
advertising, surveying, registration, etc., must be paid by 
applicant as soon as they become due. 

At all external corners indicated by the surveyor substantial 
monuments must be erected by the claimant, and maintained in 
?ood order and condition so long as he retains ownership. 



86 INTERNATIONAL MINING LAW 

All registration, advertising, surveying and other fees and 
charges are reasonable. 

Complete conveyancing rights exist as soon as the title is de- 
finitely granted. 

No royalties on output, and no other tax so long as the product 
of the property is treated and sold in the country. 

The law specifically provides that no additional imposts of any 
kind may be levied, nor any increase made in those provided, for 
a term of 25 years from the date of the promulgation of the law. 

URUGUAY 

(Law of July 24th, 1884) 

By this law all mineral substances are divided into two classes, 
called respectively Mines and Non-Mines. The former are the 
exclusive property of the State, which issues concessions .per- 
mitting their possession and usage under the provisions of the 
law. The latter belong to the surface owner when existing on 
alienated land, and when on the public domain may be acquired 
in the same way as that employed in taking up agricultural land. 

Non-Mines are deposits of those structural substances like 
limestone, sandstone, slate, granite, gypsum, aluminous and mag- 
nesian earths, silica and clay, which, occurring on or near the 
surface, are usually operated by excavations open to the sky. 

Mines include all other substances. Their legal status is that 
of under-surf ace property, distinct and separate from the surface. 
They cannot be conveyed by a deed of the latter. A grant of 
that nature having been created by the government, they cannot 
be subdivided as surface real estate may be, but remains an indi- 
visible entity so long as the grant is in existence. 

Prospecting is not free. A license must be secured from the 
local chief authority. This is obtainable by any citizen at a 
nominal cost, and is good until revoked. Under it explorations 
may be carried on upon any part of the public domain; and also 
upon all privately owned property not fenced or cultivated, or 
covered with buildings or other permanent surface improvements, 



LATIN-AMERICAN SYSTEM OF MINING LAW 87 

under the condition of indemnifying the owners for any damage 
that may occur as the result of operations, and any number of 
locations can be initiated upon discoveries made. In addition, 
with the permission of the owner or, if that is refused, by means 
of a special government permit that will be issued to any one 
who will give security for damages that may accrue, prospecting 
may be carried on for three months on fenced and cultivated 
land. But no permits will be granted to explore under orchards, 
gardens, or buildings of any kind without the written permission 
of the owners thereof, nor nearer than 40 meters to any building, 
railway, highway, or public utility, or than 70 meters to canals, 
ditches, reservoirs, public fountains or mineral springs. 

The unit of surface measurement for a mining location is the 
hectare, which may be taken as a square, a rectangle or a polygon, 
at the option of the locator, so long as the length of the property 
so constituted is not greater than three times its width. On a 
lode discovery distant five kilometers or more from any other 
registered mine a location up to 60 hectares of area is permitted 
by the law. Within that distance it cannot exceed 36 hectares. 
For placer deposits and coal the allowable areas are respectively 
three times those figures. 

Discovery of ore is a necessary pre-requisite to the initiation 
of a mining title. When there are two or more claimants for the 
same ground the first to register for discovery is held to be the 
rightful one. In the case of simultaneous applications for 
such registration, the question is referred to the Courts for 
adjudication. 

Registration is effected at the office of the district judge of 
the Department in which the property lies, or before the Attorney 
General of the Republic at the capital. The application must 
be in writing, and the document must give full particulars and 
complete information of the situation, with names and addresses 
of the interested parties, but need not be preceded by the staking 
of the ground, nor include any definite statement of the area 
desired. After this act the discoverer may delimit a tract of 12 
hectares around his point of discovery, within which, for a term 



88 INTERNATIONAL MINING LAW 

of 150 days, he is granted exclusive prospecting rights, and during 
which term he is expected to sink a shaft at least 10 meters deep, 
and to perform such other development work as will show up 
clearly the course of the ore body along the surface, its general 
nature, and the approximate angle of its dip into the earth. 
Before its end he must stake the area he desires to acquire, and 
present full particulars of the same for final registration. When 
this is done the property is surveyed by government engineers, 
the map and legal description are posted publicly, and advertised 
for 60 days in one of the daily papers at the capital of the Repub- 
lic, and in the paper of the Department in which it is situated. 
During this publication term all objections to the issue of the 
grant must be formally filed at the office of the district judge. 
At its end, if no adverses have been presented, the claimant is 
given a certificate which constitutes his title, and which is in- 
contestable except by the State, and then only for fraud, or for 
failure to comply with the terms and conditions of the franchise 
granted. 

Within the lines of his property the claimant may enjoy full 
surface rights as far as the same may be necessary for its proper 
operation, but no more. The underground boundaries of a con- 
cession are determined by vertical planes passing through the 
lines as marked on the surface. But if, during the operation of 
the mine, the ore is pursued to one or more of these planes and 
beyond them into unoccupied territory, the discovery so made 
is considered the equivalent of a surface discovery, and gives the 
explorer the right to locate up to 12 hectares of additional ground, 
taken in such form as he may desire so long as its lines on the 
surface are straight, and do not encroach upon any other valid 
and subsisting mining location. 

Mining titles are maintained by work. The provisions of the 
law in this matter are liberal. If, during six consecutive months, 
less than an aggregate of four laborers per day have been em- 
ployed in or on the mine, or if during two years the property can 
be shown to have been un worked for an aggregate of 12 months 
by less than four men per day per month, abandonment is pre- 






LATIN-AMERICAN SYSTEM OF MINING LAW 89 

sumed and denouncement becomes legal. But if the holder of 
the title can prove that a shortage of labor, war, disease among 
workmen, or other unavoidable circumstances have prevented 
full compliance with the requirements of the law, he will be 
granted such exemption from his obligations as, in the opinion 
of the authorities, seems just. Further, any mine which has 
been in continuous operation for two years or more, may secure 
the right to suspend operations for a total continuous period of 
four years, by paying semi-annually in advance a tax of not less 
than 75 cents and not more than $1.25 (as determined by the 
district judge), per month per hectare of area in the property. 

The government levies a tax of one-half of 1% on the gross 
value of the output at the mine, if the ore is beneficiated in 
whole or in part in the country, and 1 % if it is exported in its raw 
state. There is also an export duty of one-half of 1% on all 
mineral or metal exported, in any stage of refinement. 

VENEZUELA 
(Law of June 26th, 1915, amended to date of January 1st, 1917) 

This law divides mining property into three classes, as follows : 

1. The metals, together with graphite, rock salt, salines in 
general, and sheet mica. 

2. Precious stones, onyx, etc. 

3. Coal, oil, cement rock, asphalt and allied substances, and 
fossil gums. 

Those of the 3rd class, together with rock salt, salines and 
mineral springs, which have not already passed away from the 
ownership of the nation, by grants of the surface, are inalienable, 
and arrangements for working them can be made only by direct 
negotiations with the President of the Republic, which take the 
form of a concession, for a specified term, at an agreed royalty 
or rental, or both. 

Building stone, sand, slate, clay, lime, gypsum, peat, phos- 
phates, marl and other similar substances, are considered as 
belonging to the owner of the surface, and may be worked with- 
out any obligation to the State by their owners, or anybody to 



90 



INTERNATIONAL MINING LAW 



whom the latter give permission. But all mining or quarrying 
operations on alienated lands are subject to inspection by 
government officials, who have the right to insist that proper 
precautions are taken for the safety and health of the workmen. 
When these materials are found on the public domain, they may 
be acquired by the purchase of the land from the government 
as an agricultural or grazing tract, or permission to work them 
may be obtained by direct negotiations with the President. 
The same procedure applies to pearls, coral, etc. All contracts 
made with the President must be confirmed by the national 
legislature. 

In all claims, grants or concessions covering mining rights, 
conveyancing rights are complete after registration. No pro- 
duction from a mining property can take place until after 
registration of the title, excepting in the case of "barranca" 
workings, as hereinafter described. 

The law distinguishes between surface and under surface 
property rights. The first extends to the depth of three meters 
below the actual surface. The latter begins where the former 
ends, and continues downward indefinitely. Mining claims and 
grants of all kinds, except where otherwise clearly stated, as in 
the cases of alluvial and cement claims, belong to the under- 
ground class of property. 

When surface owners refuse to grant mining rights (for under 
surface operations) , or demand unreasonable terms, the law pro- 
vides procedures through which they may be compelled to accept 
equitable compensation. 

Mining claims located, or mining grants given upon unoccupied 
public domain, carry surface as well as underground rights, and 
also the right to operate for all classes of substances found therein ; 
but holders of the same are under obligations to notify the 
authorities of all new or unexpected substances found and pro- 
duced, so that the proper taxes may be assessed. 

When, in the operation of an alluvial or cement property, a 
lode, vein, or other mineral deposit in rock in place is found by 
the operators, the discoverer has the preferential right to locate 



LATIN-AMERICAN SYSTEM OF MINING LAW 91 

a claim upon it, or apply for a grant, provided such action is 
taken within six months of the discovery. 

Mineral claims and grants of all kinds are of the nature of 
contracts between the claimants or grantees and the government, 
and lapse automatically when any default in the conditions of 
the contract occurs. The right to acquire them is open to all 
individuals of legal age, except certain government officials, and 
to corporations properly organized, whether native or alien. 

The unit claim area is the hectare (about 2% acres). Any 
number of them up to 200 may be located as one claim, but the 
block so taken must be rectangular in shape, with width not less 
than half its length, excepting in the case of dredging areas, 
which may run up to 2500 hectares, and must be square in form. 

Fractions between claims not over five hectares in area will be 
given to the first adjoining claimant that applies for them, or 
divided proportionally between adjoining applicants simultane- 
ously applying. Or, they may be filed on by others if adjoining 
owners do not exercise their rights. All fractions of greater size 
must be filed upon in the normal way. 

Dredging areas are granted for any term up to 50 years; quartz 
areas up to 90 years. 

On all claims and grants serious mining operations must be 
begun within three years from date of same, unless prevented by 
circumstances which, in the opinion of the authorities, excuse 
delay. 

Suspension of work (after beginning) for more than three years 
entails forfeiture, unless excused by authorities. A mine is con- 
sidered as in operation if ten men are at work during working 
days, or machinery is running. At least half of the workmen in 
all mines must be native born Venezuelans. 

When a number of claims or grants are consolidated under one 
ownership, of either an individual or a company, the several 
parts of the consolidation do not lose their identity. Each must 
be considered by itself in respect to work for maintaining title, 
unless formally excused by the Minister of the Interior. 

The working of alluvial or cement deposits for gold, or other 



92 INTERNATIONAL MINING LAW 

native metals, when on the public domain, and so long as the 
operations are conducted personally by the individual, and with 
primitive appliances, as with the pan, rocker or long torn, is free. 
The location and registration of a claim are not necessary, 
though advisable. If excavating work like open cuts, shallow 
pits, etc., is necessary to reach the pay gravel, the miner may 
protect himself against other prospectors by staking out one or 
more areas ten meters square, upon which registration is not 
necessary, though the civil Chief of the district must be advised 
of the appropriation, and a description of the location given him. 
Similar operations to recover float ore, or the values in the dis- 
integrated outcrops of veins or other forms of surface metallifer- 
ous deposits, may be carried on without registration. But such 
operations do not protect the prospector if he pursues mineral 
below the surface soil and into bed rock. Unregistered appropria- 
tions of this nature may at any and all times be cancelled by 
the authorities if, in their opinion, the public interests demand it. 

Titles to claims and grants are maintained by the annual pay- 
ment of taxes, and of royalties on output, any default in which 
automatically works forfeiture. These, transformed approxi- 
mately into American money are as follows : 

Ten cents per annum per hectare on claim or grant area. 

Two cents per gram of gold, platinum, or mercury recovered. 

Two-tenths of a cent per gram of silver recovered. 

Ten cents per ton of ore sold or treated by its producer. 

No tax or royalty on metal recovered from unregistered work- 
ings or claims. 

Registration fee $1 plus five cents per hectare, plus three cents 
per hectare if producing any base metal, and plus two-fifths of a 
cent per hectare when the claim is located on private property. 

All mining operators must keep books of account, in one of 
which the amount of ore produced must be recorded, and in the 
other the weight of metals recovered. Before being used, these 
books must be submitted for inspection by the local authority, 
and validated for use by the signature of the local Judge and his 
clerk. 



LATIN-AMERICAN SYSTEM OF MINING LAW 93 

Imported mining machinery with spares, tools, steel, chemicals 
and explosives are free from duty. 

All mines are subject to visit and inspection at all reasonable 
hours by the government engineer, and must be operated (as to 
methods and appliances for safety of the workmen and the plant) 
in ways satisfactory to him. 

Prospecting by natives, and by aliens when properly authenti- 
cated, is free on the public domain, after notice is given to the 
local civil Chief of the intention, and of the locality to be ex- 
plored. But excavations must not exceed about 50 feet square 
in any one place, though they may be of any desired depth. 

Upon alienated areas the permission of owner must be secured, 
but cannot be asked for under buildings, fenced or cultivated 
lands, or public property (towns, cemeteries, etc.) ; nor within 
150 feet of a railroad, or a mile of fortifications. 

Exclusive prospecting rights may be obtained on the public 
domain for areas not over 800 hectares (about 2000 acres), and 
for terms not over one year, but a year's extension will be granted 
for good cause. As soon as payable mineral of any kind is found 
on such areas, the local authority must be notified, and produc- 
tion cannot begin until a contract has been arranged with the 
Minister of the Interior, and his permission secured. 

The location and registration acts required by the law are 
fairly simple and inexpensive. Claims must first be staked out 
by the claimant, who then makes written application to the civil 
Chief of the district, giving information as to area desired, situa- 
tion of same, position of adjoining or neighboring mines (if any), 
names of owners, and the kind of ore and the nature of the deposit 
expected to be developed. This is followed by 30 days of adver- 
tising, in the local paper if one exists, otherwise by means of 
200 handbills, ten of which are posted in public places in the 
district, and the remainder carefully distributed among the in- 
habitants. If no objections are filed with the authorities within 
this period, the claim is inspected and surveyed (at cost of claim- 
ant) by the local inspecting engineer, after which the claimant is 
put into physical possession, and his title becomes incontestable, 



94 INTERNATIONAL MINING LAW 

except by the government for default in the payment of taxes or 
royalties, or for failure to operate in accordance with the instruc- 
tions of the district inspector of mines, or to comply with labor 
conditions. 

Grants made for a specified term of years are renewable under 
reasonable conditions. 

Fees of all kinds are moderate, also surveying charges. 

RESULTS 

In the sixty-six-year period from 1851 to 1916 (inclusive) the 
contribution of Latin America to the metallic wealth of the 
world has been as follows: 

Gold. $968,875,941 

Silver 2,856,861,933 

Copper 873,067,692 

Tin 252,767,135 

Lead 201,909,861 

Zinc 25,152,190 

Total $5,178,634,752 

The four principal contributors to this result have been Mexico, 
Chile, Bolivia and Peru. Of these the first has proved to date by 
far the most productive, as shown by the following table. 

Mexico . Balance of Latin America 

Gold $380,339,383 $588,536,558 

Silver 1,955,984,995 ■ 900,876,938 

Copper 329,849,914 543,217,778 

Tin 252,767,135 

Lead 193,057,936 8,851,925 

Zinc 25,152,190 

$2,884,384,418 $2,294,250,334 

For the purpose of comparing the condition of the industry in 
this mining group with those of the other groups under considera- 
tion in this work, it has been deemed advisable to avoid all 
figures later than those of 1913, because of the great advance 
since then in the value of all the metals except gold, and the cor- 
responding fall in the purchasing power of the latter. The table 



LATIN-AMERICAN SYSTEM OF MINING LAW 



which follows has been prepared on that, basis. It should be 
remembered that at the beginning of the period it covers, the 
industry of precious metal mining had already been well estab- 
lished in all the countries included. 



Latin America, 1S51 to 1913 (inclusive): Mexico, Central America and South America 
(except British, Dutch and French Guiana) 



Metal 


Term 


Years 

in 
term 


Total product 
of term 


Average 
annual 
product dur- 
ing term 


Production of 
1913 


Gain ( + ) 
or loss ( — ) 
in 1913 as 
compared 

with 
average 


Gold 


1851 to 1913 


63 


$870,115,941 


$13,811,364 


$33,517,121 


+ 143% 


Silver 1851 to 1913 


63 


2,716,821,933 


43,124,157 


50,614,308 


+ 17% 


Copper. . . . 


1879 to 1913 


35 


741,131,252 


21,175,178 


40,941,600 


+ 93% 


Tin 


1885 to 1913 


29 


198,175,011 


6,833,517 


28,961,804 


+ 335% 


Lead 


1887 to 1913 


27 


185,629,960 


6,874,443 


5,337,821 


- 20% 


Zinc j 1906 to 1913 


8 


15,461,532 


1,932,691 


694,960 


- 64% 








$4,727,335,629 


$93,751,350 


$160,067,614 


+ 71% 



In the year 1851 the gold production of Latin America was 
valued at $5,793,334 and that of silver at $25,374,605. There 
were no other metals produced except a small amount of copper 
for local consumption. Copper ore began to flow from Chile to 
Europe for reduction about 1870, but the amount did not be- 
come important until 1877. The exportation of tin concentrates 
from Bolivia commenced about 1885. In 1887 Mexico began 
shipping silver-lead ores to American smelters, and argentiferous 
zinc ores about 1900. During the sixty-three year period from 
1851 to 1913 the metal mining industry of Latin America made 
the substantial progress that might be expected in a region of 
such great mineral resources, when once the business became 
firmly established, and particularly in Mexico which has been so 
vigorously exploited during the last thirty-five years by American 



96 INTERNATIONAL MINING LAW 

capital. In fact the industry in that country has been mainly 
responsible for the gain of 71% over the average output of the 
entire region, though the growth of tin mining in Bolivia has been 
notable, as well as of copper mining in Chile and Peru. The gain 
in gold is largely due to Mexico, where a production of $29,196,026 
was attained in 1911, and by this time would have exceeded that of 
all the rest of Latin America but for the unsettled political con- 
ditions that have prevailed there since 1911. In fact, ever since 
about 1888, the metallic output of that country has continuously 
been greater than that of all the rest of Latin America combined. 
In 1910 the figures were, for Mexico, $93,942,382, and for the 
balance of the members of the group $62,219,214. 

From this interesting showing it would seem to be a safe con- 
clusion that the Latin American system of mining law produces 
its best results — so far as the matter of output is concerned — 
when pushed to its extreme in principal, as is the case in Mexico 
where there are absolutely no restrictions to the amount of ground 
that may be acquired and held, so long as the very moderate 
annual taxes thereon are paid, while in addition no discovery 
is required. On the other hand the extreme poverty of the masses 
in that country in the face of the great production of new and 
permanent wealth, coupled with the concentration of mining 
territory in the hands of a comparatively few, much of which is 
idle, and the complete absence of small holdings, reveal the un- 
fortunate effects of a law which does not specifically and definitely 
encourage and foster surface exploration and individual 
enterprise. 

Considering the group as a whole, substantial progress has 
taken place in Mexico, Chile, Bolivia and Peru. In the Central 
American states, and in Columbia and Venezuela there has been 
little growth in the industry for the last twenty-five years. In 
Ecuador, Brazil and Argentina mining is actually declining. In 
Paraguay and Uruguay the production of metals is unimportant. 
In the countries of the first group the mining laws are the most 
up-to-date of their class, and very favorable to the investor. 
The instability of political conditions in the second sufficiently 



LATIN-AMERICAN SYSTEM OF MINING LAW 97 

explains the stagnant condition of the industry among them. 
These countries produce little but gold, the most of which is 
recovered by natives operating in a small way on river bars, 
and using only the most primitive applicances. In Ecuador and 
Brazil the mining laws have never been modernized, and are in 
very bad shape. In Argentina the latest revision and codification 
is far too elaborate, and in a number of matters is seriously 
restrictive, showing a movement away from the simple principles 
of Spanish mining law. 

From Mexico since 1889 has come, as shown, more than half 
of the metallic output of Latin America. All of the zinc, prac- 
tically all of the lead, 37% of the copper, 39% of the gold and 
68% of the silver. Its law, from the point of view of the investor, 
is by far the most simple and liberal of its class, and has served 
to attract enormous amounts of American capital to the develop- 
ment of its mines and the establishment of its metallurgical 
industry. 

On account of the great number of well-known but yet idle 
mining properties throughout the whole of Latin America, many 
of which are known to have been highly productive in the past 
and are by no means exhausted, it will be many years before the 
admitted lack of prospectors in the field will be left. The doc- 
trines upon which those of its mining laws that have been modern- 
ized rests answer all needs of the working populations in their 
present state of semi-servitude. Nor are they breeding condi- 
tions that will require revolutions to correct them when the time 
comes in which the pioneer mineral explorer will be needed to 
lead the way to the discovery of new fields. 

In the foregoing resume the statistics of British, Dutch and 
French Guiana have been omitted, because, as will be seen by an 
examination of their mining laws as given elsewhere, such mining 
as is in progress is being conducted under quite different systems. 
In all three, though favored with abundant mineral resources, 
the industry is in a depressed condition. 



CHAPTER VII 

The American System of Mining Law. Digest of 

the U. S. Federal Mining Law. Digest of 

the Mining Law of Texas. Results of 

the American System. Statistics of 

the Production of Precious and 

Base Metals from 1851 to 1916 

THE AMERICAN SYSTEM 

The American system of mining law is based upon the theory 
that the unappropriated public domain of the United States be- 
longs to the people of the nation individually, together with all 
mineral deposits existing thereon, and that any native-born 
citizen, or an alien who has formally (under the naturalization 
laws) declared his intention of becoming one, may freely at any 
time, and to an unlimited extent, search for and appropriate any 
deposit that he may be the first to discover, by following the 
procedures prescribed by laws made by themselves. As to those 
existing upon land already appropriated, the necessary corollary 
is that they belong to the recorded owners thereof, and may not 
be taken away except for public use under the operation of the 
doctrine of eminent domain. 

The system in its details has two eminently distinctive features. 
The first of these is that the steps prescribed for the initiation 
and maintenance of mining titles are not mandatory so far as 
the government is concerned. All may be omitted or neglected 
by the prospector and miner, even to the matter of recording 
his discovery, and yet, so long as the tract appropriated remains 
in his physical possession, he may extract ore therefrom and con- 
vert the same into money free of all obligations to the authorities. 
But, on the other hand, failure to perform any one of the acts 

98 



AMERICAN SYSTEM OF MINING LAW 99 

proscribed in the law gives to any fellow citizen who desires to 
possess his ground the right and opportunity to attack his title 
and assert a legal claim for the possession of any part or the whole 
of it. In the case of a contest of this kind the attitude of the 
government is simply that of a preserver of the peace until the 
courts, before whom both contestants must appear and give 
evidence, have rendered a decision upon the facts presented. 

The second feature is the nature of the extralateral right of 
pursuit conferred upon the lode claim. Differing from the theory 
of the old Spanish laws and some of the modern Latin-American 
ones, it gives this right not only to the vein first discovered and 
to its complete extent in depth, but also to all others whose apexes 
can be shown to lie within the boundaries of the claim, either at 
its surface or vertically below any part of it. Again, differing 
from the theory of the old German law, this right of pursuit is 
confined strictly to the ore-bearing channel or channels that may 
exist, and does not include any portion of the country rock 
enclosing them. 

To understand properly the American system and gauge its 
comparative worth, it is necessary to know its history. 

From the time when mining first began in the western United 
States (1849) until 1865, a period of nearly 16 years, titles to 
mineral property were initiated and maintained under laws made 
by the miners themselves. The industry began in California 
and spread north, south, and east from there, and the district 
laws framed by the pioneers of that State were reproduced in 
very nearly identical tenor so far as fundamentals were concerned 
in all other parts of the newly opened region. These laws were 
based upon the physical conditions encountered by the miner in 
California and recognized two classes of claims called respectively 
placer claims and lode claims. Priority of discovery and of 
staking determined the matter of ownership in both cases. The 
matter of size varied broadly in accordance with varied local 
conditions. Claims of both kinds could be recorded and posses- 
sion was maintained by work. It was quickly realized that the 
placer claim was a temporary holding to be abandoned as soon 



100 INTERNATIONAL MINING LAW 

as worked out or exhausted to such a degree as to be no longer 
interesting. The lode claim, however, was another and quite 
different affair, and the discoverer was deemed to have acquired 
the right to pursue his ore body downward as long as he cared to 
do so, regardless of where it led him. Thus, independently of 
the principles that had governed in other mining regions in the 
past, the doctrine became firmly held as properly applying to all 
kinds of mineral deposits other than alluvials. 

It was not until 1865 that Congress passed any legislation af- 
fecting mining titles, and then the only action taken was to 
announce the principle that in the matter of disputes between 
claimants to the same piece of land, while the source of title 
must be recognized as reposing in the Federal government, the 
latter merely acted in the capacity of Trustee for the people, had 
no inherent rights of its own in mineral land, refused to assert 
any as between contesting claimants to any tract, but would 
pass title to that contestant who in the courts established his 
superior rights. The language of the Act was as follows: 

Section 910 of the Revised Statutes. 

"No possessory action between persons, in any court of the United 
States, for the recovery of any mining title, or for damages to such title, 
shall be affected by the fact that the paramount title to the land in 
which such mines lie is in the United States; but each case shall be 
adjudged by the law of possession." 

In the following year this theory was again stated in slightly 
different form, as follows : 
Sec. 1 A. C. July 26th, 1866. 

"The mineral lands of the public domain, both surveyed and unsur- 
veyed, are hereby declared to be free and open to exploration by all 
citizens of the United States, and those who have declared their inten- 
tions to become citizens, subject to such regulations as may be pre- 
scribed by law, and subject also to the local customs and rules of miners 
in the several mining districts, so far as the same may not be in conflict 
with the laws of the United States." 



AMERICAN SYSTEM OF MINING LAW 101 

No further Federal action was taken for six years, when the 
above given section of the Act of 1866 was repealed, and in its 
place the following was enacted : 

Section 2319 of the Revised Statutes, being Sec. 1 A. C. May 
10th, 1872. 

"All valuable mineral deposits in lands belonging to the United 
States, both surveyed and unsurveyed, are hereby declared to be free 
and open to exploration and purchase, and the lands in which they are 
found to occupation and purchase, by citizens of the United States and 
those who have declared their intention to become such, under regula- 
tion prescribed by law, and according to the local customs and rules of 
miners in the several mining districts, so far as the same are applicable 
and not inconsistent with the laws of the United States." 

These enactments were followed by a number of others, not 
necessary to be quoted here, all of which had for their object 
either to acquiesce in and confirm the laws and customs already 
established by the miners, and already in force for nearly a 
quarter of a century, or to supplement them by such legislation 
of the same democratic kind as seemed necessary to clear up 
ambiguities and uncertainties. It was a difficult task. The 
miners' laws were not the result of much knowledge either of 
jurisprudence or of economic geology, but were simply the un- 
organized expression by the rough and ready pioneers of the day 
of natural human aspirations in one line of activity which at the 
time seemed possible of realization. It was an unexplored and 
unoccupied land of which they had taken possession. The popu- 
lations that flowed into it from all sides, like air into a vacuum, 
consisted mainly of American working men of limited education 
but unlimited virility, and well endowed with common sense and 
fundamental ideas of justice. No government or law existed 
beyond what was left of the futile and patriarchal Spanish sov- 
ereignty, which was at once brushed aside as impossible. Com- 
munication with the politically organized parts of the nation was 
slow and infrequent. The first mineral deposits found outside 
of those of alluvial gold were the well-defined and orderly fissure 



102 INTERNATIONAL MINING LAW 

veins of the Calif ornian Sierras, which submitted themselves 
readily to the extralateral rights doctrine. 

Naturally, as exploration advanced and new kinds of mineral 
deposits were discovered, difficulties arose. Many of great value 
were found which fitted badly into the letter of the law. In 
consequence a vast amount of litigation ensued, and for 30 years 
or more (1870 to 1900) the western courts were burdened with 
the problems presented. Little by little, however, interpreta- 
tions were agreed upon, precedents accumulated, and light began 
to shine through the legal maze. During all this time the miners 
who had to live and operate under this inchoate law exhibited 
a truly American patience, refusing to ask for any change in 
fundamental principles, and bearing the disappointments and 
losses that resulted with perhaps a considerable appreciation of 
the idea that a free people must expect to pass through just such 
a period of stress and storm to hold on to a system based, as this 
was, on purely democratic foundations and experiences. 

At the present time it is considered that practically all matters 
of interpretation necessary to fit the law to all varieties of geolog- 
ical structure so far encountered have been settled by the higher 
courts of the land. Now, looking backward to 1849, when its 
basic principles were first established, it appears that during the 
years that have followed there has arisen under its provisions an 
industry so remarkable in its extent and vigor, so continuous in 
its advance and so promising for its future, as to fully warrant 
the troublous years through which in its youth it has been 
compelled to struggle. It would be foolish to contend that the 
law is perfect, or that it cannot be much improved, but when 
results accomplished under it are compared with those obtained 
elsewhere under different systems, it becomes necessary to 
admit that its fundamental principles are sound. These may 
be concisely stated as follows: First, free prospecting privileges, 
coupled with simple and inexpensive rules for the initiaton of 
titles, and responsibility for its maintenance to the fellow citizen 
instead of to the government; and second, the extralateral right 
of pursuit for all forms of mineral deposits that possess continuity 



AMERICAN SYSTEM OF MINING LAW 103 

in length and depth, no matter to what geological class they 
belong, or what difficulties may be encountered in following them, 
which constitutes it as the property granted by the people to the 
individual who discovered it. This is the magnet that first 
attracted the prospector, and which has ever since held his inter- 
est and retained his services. No mineral district in the world 
has been so thoroughly explored as that of the western United 
States, nor does any begin to compare with it in results obtained, 
and yet, after nearly 70 years of energetic search the processes of 
discovery are still actively at work, each year bringing to the 
notice of capitalists new deposits of ore worthy of their attention, 
hundreds of which annually pass from the condition of prospects 
into that of producing mines. 

In all other parts of the world discovery of new mineral re- 
sources and deposits, except by accident, has largely ceased, for 
nowhere else does the prospector exist. By a most fortunate 
combination of circumstances, entirely unpremeditated, the 
American mining law gave the mineral pioneer his opportunity, 
for under its provisions he has been able to initiate a title to a 
class of real property which had an inherent selling value because 
of the nature of the claim he could make, and regardless of the 
degree and amount of developing he might or might not be able 
to do upon it. That is the secret of the remarkable outcome. It 
has resulted in the Rocky Mountain region becoming the great- 
est metal-producing district of the globe. 

UNITED STATES 

(Act of Congress of May 10th, 1872, with additions and amendments to 
date of January 1st, 1917) 

The public domain in that part of the United States comprised 
in the States of California, Colorado, Arizona, Idaho, Montana, 
North Dakota, Nevada, Oregon, New Mexico, South Dakota, 
Utah, Washington, and Wyoming, and the Territory of Alaska, 
are under the jurisdiction of what is known as the Federal Min- 
ing Law, the theory of which is that these regions from the begin- 
ning of their settlement are the common property of the citizens 



104 INTERNATIONAL MINING LAW 

of the United States, and are open and free to exploration and 
occupation by them subject to such regulations as may be from 
time to time prescribed by the District laws as made by the 
miners themselves, the Territorial and State laws enacted pre- 
viously to May 10th, 1872, and the Federal law of that date with 
such amendments and additions as may since have been placed 
upon the Statute books by Congress. 

Prospecting is free. Any citizen of either sex, or alien who has 
declared his intention of becoming a citizen, if of legal age, may 
prospect and operate upon unoccupied land, may locate as many 
mining claims as desired and hold and work them without rent, 
royalty, or any form of Federal tax or duty, so long as the pro- 
visions of the law in respect to mining property are observed; 
and, after the completion of $500 worth of developments or im- 
provements in or upon such a claim, application may be made for 
a patent, which, when allowed after due formalities, conveys fee 
simple title to the surface within the boundaries of the same; and, 
in addition, for lode claims, the right of indefinite pursuit in 
depth beyond side lines, but within planes passing through end 
lines prolonged horizontally and vertically indefinitely, of all 
veins, lodes, or other classes of deposits occurring in rock in place, 
the top or apexes of which appear on the surface within its lines, 
or may be found beneath that surface if yet within the vertical 
planes projected downward through its boundaries. There is no 
obligation on the part of the claim holder to apply for patent, and 
all the rights enumerated above are inherent to the possessory 
claim from the date of its location. 

Four classes of claims are recognized, namely, Lode claims, 
Placer claims, Mill sites, and Tunnel sites. 

The Lode Claim is a parallelogram measuring 1500 feet along 
its center line and 600 feet (or less) in width at right angles 
thereto. End and side lines must be parallel to each other. 
Discovery of mineral in rock in place must occur before the claim 
may legally be staked, but not necessarily of commercial value. A 
post is first erected at the discovery pit or open cut or shaft with 
a notice thereon giving the name or names of the locators, the 



AMERICAN SYSTEM OF MINING LAW 105 

date of the discovery, and the name of the claim. Thereupon the 
surface side and end lines are indicated by means of substantial 
posts or monuments erected at each angle, and at the center of 
the end lines. Within the succeeding 60 days the locator must 
perform enough excavating work to clearly show ten feet or more 
of the lode in depth. The surface boundaries may be so disposed 
that the discovery shaft is situated at any point desired, so long 
as it is within them. Within 90 days after discovery date the 
claim must be recorded at the office of the Clerk of the County in 
which it lies, and this record, in addition to the facts given on the 
location notice, must include such a description of the situation 
and its vicinity as will serve reasonably to identify the ground. 
The recording fee is SI. 25. As soon as record is made, convey- 
ancing rights of all kinds are complete, and the work performed 
makes the claim a valid and subsisting one until the end of the 
calendar year in which the location was made, and also to 
the end of the year following. But at some time during this 
second calendar year, at his convenience, the claimant must begin 
the annual assessment work, and should complete it if possible 
before the year ends. But, if that be impossible, any balance left 
undone at the end of the year may be finished up in the year 
following, provided the work so left over is finished up without 
cessation of labor on each working day. This annual assessment 
work consists of the expenditure in labor or improvements of 
$100. At any time after it is finished the claimant may record 
an affidavit evidencing the performance of the work, and such a 
document (which, however, is not obligatory) is held to be prima 
facie proof of the continued validity of the title. 

No survey is required. The law does not provide any specific 
conditions under which forfeiture shall automatically take place. 
If the annual work is not performed, any individual who desires 
may locate the ground in his own name. But, unless and until 
such a party enters the claim, and performs thereon all the proper 
acts of location as heretofore described, the first title continues 
valid and subsisting in spite of the failure of its owner to do the 
annual work. 



106 INTERNATIONAL MINING LAW 

The Placer Claim is a tract of 20 acres, and any number of them 
may be taken by an individual. If located upon unsurveyed 
public land such claims may be of any shape necessitated by the 
topographical features of the vicinity. But if placed upon sur- 
veyed land they must conform in shape, area, and position to the 
legal subdivisions established by the government. An associa- 
tion of eight individuals may locate eight of such 20-acre tracts 
adjoining, making thereby what is called a " joint location," 
and may repeat the process indefinitely. Each of these two kinds 
of placer claims when located must be provided with a discovery 
notice and posts at each corner or angle of the claim, and within 
90 days thereafter must be recorded. The annual labor require- 
ments for the maintenance of possession as against other citizens 
are the same as for lode claims, regardless of whether the claim is a 
single one of 20 acres, or a joint location of 160 acres. When the 
claim is situated upon surveyed land no location or discovery 
shaft is required. 

Any class or kind of mineral deposit, excepting lodes and other 
aggregations of minerals in rock in place, such as coal, metallif- 
erous alluvials, mineral oil and gas, asphalts, salines, sulphur, 
building stones, etc., may be acquired by the filing of placer 
claims. This form of mining title confers no extralateral rights, 
nor the right to own or operate any vein or lode or any other kind 
of mineral deposit of that class, that are known to exist as passing 
through or under it, at the time of location, or of application for 
patent. But any lodes that may be discovered within its lines 
after the last date belong to its owner, but may not be pursued in 
depth outside of its lines projected vertically downward. 

The Mill Site is a five-acre tract, one of which may be located 
for each lode claim taken. It is supposed to be placed on non- 
mineral land, and nominally has no mineral rights. The pro- 
cedures required in the processes of location, staking, and record- 
ing are similar to those for lode and placer claims. If allowed 
to go to patent without contest, all underground and surface 
mineral rights are acquired except that of the extralateral pursuit 
of any veins or lodes that may at any time thereafter be discov- 



AMERICAN SYSTEM OF MINING LAW 107 

ered having apexes within its surface lines, except as to such as 
were known prior to the date of patent application. 

The Tunnel Site is a tract of land 3000 feet long in the direction 
of the line of the bore, and as broad as the width of the same, 
along which the claimant has the exclusive right to drive, and to ac- 
quire the ownership of all veins found while doing so that have 
not been (at the time of the intersection) already discovered and 
claimed on the surface, to the extent of 750 feet on each side of the 
center line of the tunnel. This line should be blazed and staked 
on the surface at intervals of 500 feet, a notice posted at the 
entrance and a copy of the same recorded. When a new vein 
is encountered it must be staked on the surface in the ordinary 
way of lode claims, taking into account the angle of dip as shown 
in the tunnel, and recorded, but no discovery shaft is required. 
By this procedure the claimant acquires the right of way through 
patented and unpatented claims along his line, and the ownership 
of whatever ore may be found in passing through them, but not 
the right to drive, sink, raise or stope upon them. When the 
3000-foot limit is reached he may continue his operations indefi- 
nitely along the same line, and if more unknown veins are found 
they may be staked and claimed on the surface, but in this case 
discovery shafts must be sunk upon them. No patents are 
obtainable for tunnel sites, but work done in driving them (up to 
a length of 3000 feet) can be applied as assessment work on the 
new veins cut and claimed within that distance, and the loca- 
tions made on such veins may be patented in the ordinary way. 
Beyond the 3000-foot limits the driving costs cannot be applied 
as assessment work on new veins found. The law makes no pro- 
visions for the abandonment or forfeiture of tunnel site claims. 

There is no obligation on the part of owners of lode or placer 
claims or mill sites to patent, and the possessory title when duly 
maintained by the annual assessment work is exactly as good as 
it would be after patenting so far as the rights of the claimant are 
concerned. The steps required for the act are somewhat expen- 
sive and complicated, and the services of an attorney are gener- 
ally necessary. The last step is that of payment for the land. 



108 INTERNATIONAL MINING LAW 

For lode claims and mill sites the price is $5 per acre or fraction 
thereof, and for placer claims $2.50 per acre. When the land is 
paid for and the patent is granted the document evidencing it 
confers a fee simple title and thereafter no annual assessment 
work is required. 

Unpatented mining claims are not taxable by the State, as they 
enjoy the status of being still a portion of the Public Domain, no 
matter how extensively they may have been developed by their 
owners, nor how large may have been the profits derived from 
them. 

Patented claims are taxed by the States on the same basis as 
other real estate within its borders, which is that of their assessed 
valuation as determined by their acreage and the value of the 
improvements thereon. In addition to this, some of the mining 
States impose a tax either on gross product or on net profits. 
There are no Federal taxes or royalties of any kind on mining 
property held under the Federal mining law. 

Owners of lode or placer claims or mill sites enjoy exclusive 
right to the possession and usage of the surface within their lines 
and all things thereon such as timber and water; and, on the 
other hand, are under the obligation to allow all reasonable and 
necessary easements to adjoining and neighboring owners. 

Prospecting or mining on private land the title to which has 
been obtained through laws other than those pertaining to min- 
ing, except with the consent of the owner, is illegal, and there are 
no means by which such owners may be compelled to allow such 
privileges. But the owner of a lode claim may pursue his vein 
underneath the surface of such property without permission. 
On the other hand, the owner of such a tract has the exclusive 
right of possession and usage of any kind of mineral value that 
may be found thereon, but not the right to pursue any vein or 
lode that may outcrop within his lines beyond the same. 

The law makes suitable provisions for water, reservoir, ditch 
and tailing rights and sites. 

In most of the States in which the Federal Mining Law governs 
mining rights, the States themselves have enacted supplementary 



AMERICAN SYSTEM OF MINING LAW 109 

laws which provide for and cover contingencies not contemplated 
in the National Acts. None of these can change the fundamental 
principles upon which the latter is based, but do enlarge in matters 
of detail. There is little variation from each other in these 
Stn to laws, and in a work of this kind no necessity of presenting 
digests of them. But whenever mining operations are contem- 
plated under the Federal law it will always be advisable, and 
sometimes quite necessary, to take into account the law of the 
particular State in which they are to be conducted. 

DIGEST OF MINING LAW OF TEXAS 
(Act of 1913, with amendments to date of January 1st, 1917) 

All public lands of all kinds, all lands heretofore sold with 
mineral reservation, and all those which may hereafter be sold 
with such rights reserved; also all lands purchased to date, or 
which may hereafter be purchased with relinquishment of the 
mineral rights therein, are placed under the provisions of this 
Act, and are thrown open to citizens of the United States, and 
such as have heretofore or may hereafter declare their intention 
of becoming citizens, to prospecting and to occupancy for mining 
purposes, under the leasehold system. To this end, mineral 
deposits are classified as follows: 

1. Petroleum and Natural Gas. 

2. Coal and Lignite. 

3. Metals and other Minerals. 

In the first case (oil and gas), a maximum area of 1280 acres, 
or two square miles, is allowed to an individual or corporation, 
but not over 200 acres within 10 miles of a producing and operating 
well. Application for the ground desired must be made to the 
County Surveyor, and after certain simple and inexpensive 
formalities have been complied with, a permit is issued giving the 
applicant the right to drill or otherwise explore under reasonable 
conditions. If oil or gas is found in payable quantities, the 
Operator, before removing any from the premises, must take out a 



110 INTERNATIONAL MINING LAW 

lease. This may run for any period up to 10 years, and costs 
$2 per acre per annum in advance. In addition, a royalty of 
\2}i% of the gross value of oil sold, and 10% of the gross value 
of gas, is demanded by the State. When such leases are taken out 
for lands the surface rights of which have been alienated, the 
lessee must also pay 20 cents per acre per annum to the surface 
owner. 

In the second case (coal and lignite), the application to prospect 
is made to the Clerk of the County, and the maximum area 
allowed is 2560 acres, or four square miles. The term is 20 
years, with preference renewal right at end of same. The State 
demands a royalty of four cents per ton on lignite and six cents 
per ton on coal, payable monthly on sales; but after the third 
year of operations this royalty must amount to not less than the 
equivalent of $4 per acre per annum on the tract. 

In the third case (all other minerals) , the ordinary mining claim 
is a parallelogram 1500 feet long and 600 feet wide, of unlimited 
vertical depth, and conveys no extralateral underground rights. 
No prospecting license is required. The location acts are simple 
and inexpensive. No discovery of mineral seems to be required, 
but a 10-foot shaft or open cut must be excavated before recording. 
Three months' time after date on location stake is allowed for this 
and other preliminary acts. Recording fee is $1. Within one 
year an official survey is required, for which a charge not to ex- 
ceed $20 is allowed to the County Surveyor. When his plat and 
field notes are completed they are forwarded to the Commissioner 
of the Land Office of the State together with a filing fee of $1. 
As soon as these documents are accepted the title is complete, 
and is maintained thereafter in good order by the doing of $100- 
worth of work or improvements per annum on the claim, and the 
filing of an affidavit in the Land Office evidencing the same. No 
more than five of these claims are permitted to be held at one time 
by an individual or corporation. 

If it is desired to locate a placer claim, or one to cover a 
deposit of clay, baryta, salt or other salines, building stone, 
gypsum, mineral paint, nitrates or any other non-metallic earthy 



AMERICAN SYSTEM OF MINING LAW 111 

substance, the procedure is identical, but the claim may be up to 
40 acres in area. It must conform to legal subdivisions if pos- 
sible, and no individual or corporation is allowed to hold more 
than eight of these at one time. 

On all metals and minerals extracted and sold from claims of 
this third class, the State demands a royalty of 5% per annum 
on the gross value of the output. 

Mining claims of all kinds, after the title to the same is per- 
fected, are subject to taxation, like all other forms of real property. 

RESULTS 

The metallic product of the mines of those western American 
states that operate under the provisions of the Federal mining 
law, for the sixty -six year period from 1851 to 1916 (inclusive), 
has been as follows: 

Gold $3,695,922,075 

Mercury 104,721,907 

Silver 1,930,478,241 

Lead 616,335,082 

Copper 2,633,672,533 

Zinc 155,785,934 

$9,136,915,772 

As the discovery of gold in California occurred in 1847, becom- 
ing so well known during 1848 that the stampede for the mines 
was in full swing in 1849; and as the generally accepted output 
of that metal for 1851 was $55,000,000, it is probable that the 
foregoing figures should be greater by at least a hundred millions 
to correctly represent the total metallic output of the West to 
the close of 1916. In 1853 the early maximum gold production 
of $65,000,000 was reached, after which date there was a slow 
but steady decline to the figure of $30,000,000 in 1883. This 
was followed by a steady annual increase until the prevailing 
figures of recent years were attained, which have been less than 
ninety millions per year only once since 1905. The output of 
1916 was valued at $92,251,400. 



112 INTERNA TIONAL MINING LA W 

The production of mercury began almost at the same time as 
that of gold, the value of the yield of 1851 being officially rated 
at $1,334,707. The maximum output of $4,233,562 was reached 
in 1875, when silver production at the Comstock lode in Nevada 
was at its hight, and also about the time when the smelting in- 
dustry was beginning in the West. Silver production also began 
with that of gold but until 1861 consisted only of such small 
amounts each year as were recovered from placer gold. From 
that date onward, as the mines of Nevada, Montana, Utah and 
Colorado were discovered and developed, it became a steadily 
increasing factor in the total product of the West, reaching a 
maximum in 1889 of $66,396,988 when the Leadville, Creede and 
Aspen districts in Colorado were at their best. A serious decline 
followed as the result of the demonetization of the metal in 1893, 
recovery from which is not yet complete. The value of the 
product of the year 1916 was $47,957,540. 

Lead production began in 1873 and has steadily grown in im- 
portance. The yield in 1916 amounted in value to $48,672,872. 

Beginning in a small way in Colorado in 1871 the yield of cop- 
per from the western American mines has outstripped the record 
of that of all the other metals put together, its value in 1916 
having been the remarkable sum of $447,229,448, nearly three 
times that of 1913. The figures for zinc have been almost as 
astonishing. Production began in 1903, and by 1916 had at- 
tained a value of $69,253,776. In the case of both of these metals 
the major part of the gain over the figures of 1913 has been due 
to the advance in the market price since the beginning of the 
European war. 

These figures are witnesses of the remarkable growth and 
vitality of the western American mining industry, and are par- 
ticularly notable in the case of the precious metals as showing 
that during the final years of the term under consideration the 
output of gold was greater by nearly 50% than that of the best 
year of the days of placer mining, while that of silver was within 
20% of the best year previous to the demonetization of that 
metal. 






AMERICAN SYSTEM OF MINING LAW 



113 



For the purpose of comparing the condition of the industry 
under normal conditions with that of the other five great metal 
mining regions of the world, the following table is presented, 
covering the sixty-three year period from 1851 to 1913 inclusive, 
omitting the figures for 1914-15 and 16, during which years 
such abnormal prices have prevailed for all the metals that com- 
parisons in terms of value of output are out of the question. It 
shows substantial gain over the average of the term in the output 
of all the metals except mercury, which, being no longer used in 
the treatment of silver ores, and much less than formerly in the 



Western United States, 1851 to 1913 (inclusive): Alaska, Arizona, California, Colorado, 

Idaho, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, 

Washington and Wyoming 



Metal 


Term 


Years 

in 
term 


Total product 
of term 


Average 
annual 
product dur- 
ing term 


Product of 
1913 


Gain ( + ) 
or loss ( — ) 
in 1913 as 
compared 
with 
average 


Gold : 1851 to 1913 


63 


$3,411,336,375 


$54,148,196 


$88,844,400 


+ 65% 


Mercury. . . 1851 to 1913 


63 


98,495,202 


1,563,416 


813,171 


- 48% 


Silver 1851 to 1913 


63 


1,805,795,101 


28,663,414 


40,348,100 


+ 40% 


Lead 1873 to 1913 


41 


512,015,787 


12,488,189 


23,738,050 


+ 90% 


Copper 1879 to 1913 


36 


1,865,442,235 


51,817,840 


156,895,751 


+ 203% 


Zinc J 1903 to 1913 


11 


51,261,208 


4,660,109 


14,172,620 


+ 204% 






$7,744,345,908 


$153,341,164 


$324,812,092 


+ 111% 



recovery of gold, suffered such a serious loss of demand and price 
that the suspension of operations at all but the largest Calif ornian 
mines became advisable. However, immediately upon the re- 
vival of prices in 1914, production was resumed, and at the pres- 
ent time in value is nearly three times that of the average of the 
period, the output of 1916 having sold for $3,643,800. In reality, 
the case of mercury is one of the evidences of the substantial 
condition of the metal mining industry in the West, for it signifies 



114 



INTERNATIONAL MINING LAW 



not only the passing of the crude and uneconomical amalgamation 
process, but the rise and remarkable growth of the smelting in- 
dustry, and of the mechanical concentration of ores at the place 
of their production; in a word, of the firm establishment of the 
metallurgical industry. In this respect the western American 
mining field is being operated at the present time under better 
conditions than exist in any other part of the mining world. 



CHAPTER VIII 

The British Australasian System of Mining Law. Digests 
of the Mining Laws of New South Wales, New Zea- 
land, Queensland, South Australia, Tasmania, 
Victoria, and West Australia. Results of 
the System. Statistics of Production 
from 1851 to 1916 

THE BRITISH AUSTRALASIAN SYSTEM 

The Australian system of mining laws includes those of New 
South Wales, New Zealand, Queensland, South Australia, Tas- 
mania, Victoria and West Australia, and they resemble each other 
in fundamentals while differing markedly in detail. The metal 
industry in that part of the world had its inception in the dis- 
covery of gold in 1851 in New South Wales, which was, at the 
time, a convict colony of the British Empire. When the event 
became generally known the stampede from all parts of the world 
to the new El Dorado rivalled that which was at the time in full 
swing towards California, where the precious metal had been 
found four years previously, and in which many Australians had 
taken part. Quite a number of these returned immediately to 
the island continent, carrying with them not only the mining 
experience gained in California, but the free spirit and ways of 
the American pioneer, and ah acquaintance with the code of 
mining laws that had been established by them to govern opera- 
tions in a land where no laws on the subject were in existence. 
As those laws, in both spirit and practice, were extremely favour- 
able to the individual worker, who constituted then almost the 
entire body of the new American state, they were adopted almost 
without change in the new Australian community, and remained 
in force there until 1866, by which time many agricultural and 

115 



116 INTERNATIONAL MINING LAW 

commercial communities had been established, and had acquired 
enough population to outbalance that of the mining centers. 
When this condition was reached the natural conservatism of the 
British temperament moved towards a revision of the laws to 
bring them more in line with the system of land tenure in effect 
in the older country and the abolition of that particular feature in 
the American code — the apex and extralateral right doctrine — 
which was not only novel but rather repugnant to English ideas, 
and which there, as in America, had resulted in much litigation. 
When making these changes public sentiment went to the other 
extreme and produced a group of mineral acts which were so 
ultra-conservative, so minutely detailed, and so carefully pro- 
tective of property rights that little room was left for the exercise 
of individual initiative and enterprise. In consequence, explora- 
tions in the sense of searching for the indications on the surface 
of new mineral deposits were immediately checked, many of the 
class of wandering pioneers left for other lands where they hoped 
to find freer conditions, and as soon as the wonderful placer 
deposits began to exhibit signs of exhaustion the industry gave 
indications of decline. This phase has persisted with occasional 
reactions, and at the present time throughout the great island, 
whose geological structure, so far as known, should make it one 
of the most productive mineral fields of the world, the metal 
mining industry is in a condition of stagnation that is most dis- 
couraging. Although all the officials of the province have en- 
deavored to stem the current by offers of liberal state rewards 
for new discoveries, and liberal tenders of state help in mining- 
development work, the metallic output does not increase in 
quantity as it should. 

In all the political units of British Australasia the State claims 
the exclusive ownership of deposits of the metals, both precious 
and base, whether occurring upon the yet vast area of unoc- 
cupied public lands, or upon privately owned tracts (with certain 
small exceptions as to areas alienated before given dates, and 
certain others dedicated to public usage, or held as native or 
forest reserves), and will not grant fee simple title to any of it 



BRITISH AUSTRALASIAN MINING LAW 117 

for mining purposes. Instead, except in West Australia, it 
grants first, temporary prospecting areas of various sizes and 
under various conditions, within and during the term of which 
the holder is permitted to locate claims if anything of value is 
found; second, it allows the location of a great variety of claims 
of different sizes and for different purposes without the prelimi- 
nary step of taking up prospecting areas, which may be held 
indefinitely on the condition of reasonably continuous work and 
the pajmient of a moderate annual tax, which claims, at the option 
of the holders thereof, may be converted at any time into long 
term leases. The latter are renewable once in the case of New 
South Wales, Queensland, West Australia and Tasmania, and 
indefinitely (at the discretion of the authorities) in the case of 
Victoria. In South Australia and New Zealand no renewals are 
granted. 

Prospecting is nowhere free. Licenses, good for a year, and for 
the location of one claim only, are issued by Queensland, South 
Australia, Victoria, West Australia and Tasmania, at costs 
ranging from two shillings and sixpence to ten shillings, while in 
New Zealand the license, costing five shillings, allows the holder 
to locate each one of nine different kinds of claims. In Tas- 
mania only one license at a time may be held by the prospector, 
and it must be for a specified area. Elsewhere any number 
may be taken out by an individual, or bought from others . 

These licenses cover full mining and realization rights in New 
South Wales, Queensland, South Australia and Victoria. In 
West Australia they confer only the privilege of the inspection 
of the surface, of staking claims and of taking away assay or 
display samples, and no mining or realization is permitted until 
they are converted into leases. In New Zealand they confer full 
mining rights for gold, but not for any other metal. In Tasmania 
the right to excavate and sell ore found can only be secured by 
taking out an additional license called a "Miner's Right," which 
costs five shillings per year and is indefinitely renewable annually 
at the same cost. 

All claims are transferable after recording, and the acts of 



118 INTERNATIONAL MINING LAW 

staking and recording are simple, effective, and inexpensive, 
excepting in Victoria and New Zealand, where they are rather 
elaborate, and in New South Wales, where they are rather ex- 
pensive from the point of view of the miner. 

Leasehold terms range from 15 years (renewable indefinitely) 
in Victoria, to 63 years in New Zealand, and are good only for 
the metal or metals specified in the document, excepting in 
Tasmania, where they are good either for gold alone, or for all 
other metals except gold. 

Claims and leases are maintained in force by the annual pay- 
ment in advance of a rental ranging in amount for the precious 
metals from zero per acre in New Zealand and one shilling 
in South Australia, up to one pound per acre in Queensland, and 
smaller amounts for the other metals, except in New Zealand 
and Victoria where, curiously enough, the rates are higher for the 
base metals. 

British Australasia has never had to contend with a native 
population of assumed intellectual inferiority as has South 
Africa. The Australian and Tasmanian aborigine, like the red 
Indian of America, would not work; while the New Zealand 
native, being a Polynesian of the best class, was not only a good 
worker but proved to be so close to the white man in color and 
intelligence that no invidious distinction has arisen between 
them. It is therefore not beneath the dignity of the Briton 
there to work with his hands, and labor is no more the badge of a 
caste there than in America or Canada. Hence, if the mining 
laws permitted the free exercise of that line of activity which has 
to do with the search for deposits of the metals, and gave the 
discoverer the chance to enjoy the normal reward of his labor, 
prospectors would surely be attracted by the great opportunities 
offered. 

NEW SOUTH WALES 

(Law of 1906 with amendments to January 1st, 1917) 

A Prospecting and Mining License is required. The document 
is known as a " Miner's Right." It costs five shillings per year, 



BRITISH AUSTRALASIAN MINING LAW 119 

and is renewable annually up to a total of 20 years. Any num- 
ber may be taken out by an individual of legal age if capable of 
citizenship. Each license is good for the location of one claim 
of each of the nine classes recognized by the law, as hereinafter 
specified, is transferable by endorsement, and confers possessory 
title to all claims acquired by virtue of it, as long as it is kept in 
force, and as long as the Rules and Regulations of the Mining 
Acts are complied with and provides for the exercise of all neces- 
sary rights of mining activity thereon and therein ; also of locating 
one residence area (with surface rights only) not to exceed one- 
quarter of an acre if within the boundaries of a town, or two 
acres if outside. 

The Law recognizes the following classes of claims, all of which 
are called " tenements:" 

Class 1. 

Alluvial Prospecting Areas 600 by 600 to 1400 by 1400 feet 

Quartz Prospecting Areas 400 by 480 to 400 by 960 feet 

Mineral Prospecting Areas 1320 by 1320 feet 

Opal Prospecting Areas 400 by 400 feet 

Class 2. 

Alluvial Reward Claim 300 by 300 to 700 by 700 feet 

Block Alluvial Claim 100 by 100 to 300 by 300 feet 

Extended Alluvial Claim 147 by 590 to 233 by 933 feet 

Sluicing Claim 180 by 722 to 233 by 933 feet 

River and Creek Claim 100 ft. by width of creek. 

Quartz Reward Claim 240 by 400 to 400 by 480 feet 

Ordinary Quartz Claim 60 by 400 feet 

Mineral Reward Claim 600 by 660 feet 

Opal Reward Claim 150 by 150 feet 

Ordinary Mineral Claim 417 by 417 feet 

Ordinary Opal Claim ' 100 by 100 feet 

Class 3. — Water Rights Claim. No specified area. 

Class 4. — Dam (Reservoir) Site. Five acres. 

Class 5. — Races (Ditches). Ten to 20 feet on each side of channel. 

Class 6. — Machinery Areas. Two Acres. 

Class 7. — Road Claims. Not over 15 feet wide. 

Class 8. — Tramway Claims. Not over 15 feet wide. 

Class 9. — Tunnel Sites. As per agreement with Warden and Minister. 
9 



120 INTERNATIONAL MINING LAW 

A holder of a " Miner's Right" may make application for 
authority to prospect on any unoccupied Crown lands to the 
Minister of Mines, who thereupon will arrange terms of area, 
time, rental, conditions of labor and all other necessary matters 
with applicant, and will issue exclusive authority. Rental, and 
survey fee (if necessary) are payable in advance. Upon the 
discovery of any desirable mineral within the area so granted, the* 
discoverer must report within 14 days to the District Warden, who 
thereupon reports to the Minister of Mines. The latter then, at 
his discretion, calls upon the discoverer to take out a lease, or will 
allow him to continue his prospecting operations for a longer 
period. 

On all classes of claims except prospecting areas, block claims, 
and residence areas outside of towns, registration is required 
within 28 days after the act of taking possession. It is effected 
at the office of the Mining Register of the district in which the 
property lies. At this function the " Miner's Right" must be 
produced. After registration, conveyancing rights are complete. 

On all classes of claims except prospecting areas, block claims, 
and residence areas, the act of taking possession consists in setting 
stakes at all corners of the claim, one of which is called the 
"datum" stake. On this, within three days after staking, the 
claimant must post a notice giving his name, date of location, 
class of claim, area and shape. Simultaneously a copy of the 
same must be posted on the outside of the office of the Registrar, 
and both notices must be kept posted until registration is effected. 
Adverse claimants have seven days after this act of posting in 
which to file adverse claims. 

Registration fee for all classes of claims is 2s. 6d. 

Registration is obligatory on the following classes of claims, 
Alluvial Reward, Extended Alluvial, Sluicing, River and Creek, 
Quartz Reward, Ordinary Quartz, Block Alluvial, Mineral 
Reward, Opal Reward, Water Right, Ditch Right, Reservoir 
Site, Machinery Site, Road, and Tramway. All others may be 
registered, if claimant so desires. 

Surveys, at cost of claimant, at the time of registration, are 



BRITISH AUSTRALASIAN MINING LAW 121 

obligatory on the following classes of claims: Alluvial Reward, 
Alluvial Extended, Sluicing, Quartz Reward, Ordinary Quartz, 
Mineral Reward, and Machinery Area. On other classes of 
tenements surveys are at the option of the claimant. But a 
survey can always be insisted upon by the authorities, and when 
not, an Inspection Fee of 10 shillings ($2.50) is substituted. Sur- 
vey costs range from $5 on claims not exceeding one acre in area, 
up to $50 on claims not over one square mile in area. 

Upon prospecting areas at least one competent miner must be 
efficiently employed daily (except on legal holidays) to maintain 
the claim title. 

Mining and prospecting claims may be located on privately 
owned lands by permission of the District Warden, and upon 
payment to the surface owner of such an amount as the Warden 
may decree. But no such permission will be granted upon lands 
covered with buildings or reservoirs, or in cultivation, without 
the consent of the owner. 

Residence areas cover only surface rights, and to the depth of 
50 feet thereunder. 

The title acquirable through the exercise of the " Miner's 
Right" is of a possessory nature only, and is maintainable only 
by keeping the " Right" in force, and by keeping efficiently at 
work on the claim to the satisfaction of the District Warden. It 
may be converted at any time into a lease, and the authorities 
have the right to insist upon the conversion. 

Quartz Prospecting Areas, Quartz Reward Claims, and Quartz 
Ordinary Claims are supposed to be located only on well defined 
veins or lodes in which gold is the principal metal expected to be 
recovered. 

Mineral Prospecting Areas, Mineral Reward Claims and Ordi- 
nary Mineral Claims are supposed to be located on all other 
kinds of underground metalliferous deposits. 

Leases 

All leases are grantable or refusable at the discretion of the 
Go vernor-in-C ouncil , 



122 INTERNATIONAL MINING LAW 

Survey is required (at cost of applicant) unless the ground has 
been already surveyed, and all the monuments are in good order. 

The maximum area for a gold mining lease is 25 acres. 

The maximum area for a mineral lease for other metals is 80 
acres. 

The maximum area for an opal lease is 10 acres. 

Rental for leases of all kinds is five shillings per acre, per 
annum, payable in advance. 

All leased areas must, if practicable, be parallelograms, with 
lengths not greater than three times the widths. 

The maximum term of a lease is 20 years, which may be re- 
newed once for a second term of equal length. 

All leases are liable for forfeiture if the holder mines thereon for 
metals other than that or those for which lease was granted. 

All conditions of a lease otherwise are matters of arrangement 
between the applicant and the Minister of Mines, duly advised 
by the District Warden. 

Special forms of leases, to cover special conditions not specified 
in the law, are obtainable through negotiations with the Minister 
of Mines. When application is made for same a fee of £10 is 
required, in addition to the rental in advance. 

Preliminary authority to enter privately owned land for pros- 
pecting purposes is granted for any term not to exceed 12 months, 
with right for an extension of an additional 12 months if desired. 

When leases are asked for and obtained on privately owned 
land, in addition to the rental due to the Government a second 
rental, payable quarterly in advance, is due to the surface owner, 
the amount of the same to be determined by the district Warden. 

Labor requirements on leases are as follows : 

For gold claims, not less than one man per five acres (or frac- 
tion) for the first 12 months; and thereafter, not less than one man 
per two acres. For other metals, not less than one man per 20 
acres for first 12 months, and thereafter not less than one man 
per 10 acres. 

Leases for dredging purposes are obtainable for terms of 20 
years, renewable once for an equal term, at an annual rental of 



BRITISH AUSTRALASIAN MINING LAW 123 

2s. (id. per acre, payable in advance. If on privately owned land, 
on a rental to he approved by the Warden. 

Royalties 

On all classes of claims, whether on public or private land, and 
for all kinds of metals, royalty is required of 1 % of the gross value 
of the metal recovered, less the amount of rental annually paid. 
No royalties are payable to surface owners. 

All producers must keep books of account, and must report 
fully as to their operations between January 1st and 14th of each 
year for the year passed. Further reports may be required at 
any time. Full inspection by Government officials at any 
reasonable hour must be allowed. 

NEW ZEALAND 

(Law of 1908, with amendments to date of January 1st, 1917) 

All Crown lands not already occupied for mining or other pur- 
poses are open to application for mining privileges; also all lands 
sold under the Act of 1908 known as "The Land for Settlement" 
Act; also all land disposed of in any way under the Land Act of 
1892 or amendments thereto. But the Governor has the power, 
from time to time, and after due notice in the official Govern- 
ment Gazette, to withdraw any portions of the Crown lands from 
mining privileges. 

Prospecting is not free. A form of permit called a " Miner's 
Right " is required to be'in the possession of all who engage in the 
business on their own account. Such permits, good for 12 
months from date of issue, may be purchased by any individual 
of either sex over the age of 14 years, and in any desired number, 
at a cost of five shillings each (except in the case of permits giving 
rights on Native ceded lands, when the cost is 20 shillings), from 
any Postmaster or District Warden. They are not transferable. 
They confer the right to take up one alluvial claim, and to buy 
any number of such from legal holders thereof; and to prospect on 
Crown lands (or on Native ceded land if the " Right" is of that 



124 INTERNATIONAL MINING LAW 

kind) for any metal or mineral. The law also provides for the 
sale to anyone legally entitled to purchase one or more single 
" Miner's Rights/' a permit called a " Consolidated Miner's 
Right/' which consists of any desired number of single " Miner's 
Rights/' and costs a sum equal to the aggregate of the cost of all 
the " Rights" therein. When such a document is taken out for 
the benefit of a mining partnership, the name of each partner 
must appear upon it; otherwise, only the name of the actual 
purchaser. This also is good for twelve months only. Both 
of these forms of permit may be renewed annually indefinitely, at 
the same cost as that of the original issue. 

Two other forms of prospecting permits are obtainable, one of 
which is called a " Prospecting Warrant," and the other a " Pros- 
pecting License." These, when covering privileges on Native 
ceded land, are issued only by the Governor, and when on other 
lands, by the District Wardens, and at their discretion. The 
" Warrant" is a non-exclusive right, while the "License" is an 
exclusive one, covering rights only on the particular area de- 
scribed by it. 

Again, these "Prospecting Licenses" are of two kinds, called 
respectively "Ordinary Prospecting Licenses" and "Tunnel 
Prospecting Licenses." The former applies to prospecting gen- 
erally, and the latter to prospecting along the line of a tunnel 
which the licensee is driving. 

When a "Prospecting Warrant" is used, no staking of claims 
or areas is required, but when operating under a "Prospecting 
License" the ground must be staked,' and a survey may be 
required if two or more individuals are operating close together. 

The area of land to which a "Tunnel Prospecting License" 
may relate cannot exceed 450 feet on each side of the center line 
of the tunnel along the whole length thereof, but in no case can it 
include any river, or river channel. The area pertaining to an 
"Ordinary Prospecting License" is 100 acres or less. 

The "Prospecting Warrant" and "Ordinary Prospecting 
License" are good for 12 months and are not renewable; but on 
their expiry the holder may make a fresh application. A "Tun- 



BRITISH AUSTRALASIAN MINING LAW 125 

nel Prospecting License" has a life of two years, and may be 
renewed thereafter from year to year indefinitely. 

The cost of a "Prospecting Warrant" is 20 shillings, and of an 
"Ordinary Prospecting License" one shilling per acre of land to 
which it relates, but in no case not less than 20 shillings. In 
both cases the fee is payable in advance, and in the case of a 
"Tunnel Prospecting License" annually in advance, while the 
license or its renewal is in force. 

Prospecting permits, warrants, and licenses of all kinds are 
issued under the condition of vigorous and practically continuous 
prosecution of exploration to the satisfaction of the District 
Warden, to whom also must be reported promptly all discoveries 
made ; also the filling up of all excavations made that are not to be 
used in the permanent working of the ground. When operations 
are to be carried on upon privately owned land, satisfactory secu- 
rity must be given to the Warden or Governor to cover any dam- 
ages that might ensue. Areas exempted from prospecting are 
those enclosed and cultivated or used for residential purposes, 
cemetaries and parks (public and private); privately owned 
areas whose owners are themselves conducting explorations for 
mineral, or are mining; and within 100 feet of any spring, arti- 
ficial reservoir, dam, ditch or water works. 

Still another form of prospecting permit is obtainable, which is 
called a "Mineral Prospecting Warrant." It may be secured 
from the District Warden, or the Commissioner of Crown Lands 
acting under the permission of the Minister of Mines. It grants 
exclusive right to search for any one specified mineral over a 
definitely delimited area of Crown land not to exceed 10,000 
acres in extent, is good for five years, and costs £50 for the first 
1000 acres, and £25 for each subsequent 1000 acres or fraction 
thereof, payable in advance. In addition, an annual rental of one 
penny per acre for the first and second year, twopence for the 
third, threepence for the fourth, and sixpence for the fifth. At 
any time within the term the Warrant may be converted into a 
lease for not to exceed 1000 acres in one contiguous block, on 
payment of £1 per acre. The term is 63 years or less, and the 



126 INTERNATIONAL MINING LAW 

rental is 2s. 6d. per acre per annum. In addition, a royalty of 
4% of the value of the mineral at the mine is collected. But, 
when the royalty in any one year exceeds the amount of the 
rental, the latter, for that year, is remitted. 

All forms of prospecting permits heretofore mentioned, except- 
ing the one called " Mineral Prospecting Warrant," are assumed 
by the law to be utilized only for searching and exploring, and do 
not convey the right to produce metals or ores, or to realize on 
the same in any way. But when such substances are found, and 
appear to exist in payable quantity, the prospector is supposed 
at once to file claims upon his discovery, and to have the exclusive 
right to do so. Claims are of five kinds, to wit: Alluvial, Dredg- 
ing, River, Quartz, and Sea Beach. 

In general, and when not impracticable, all claims must be 
four-sided (but not necessarily rectangular), with no one side ex- 
ceeding twice the length of any other side. When this rule is 
impracticable or unreasonable, it may be set aside with the con- 
sent of the District Warden. 

Each one of the above mentioned classes of claims may be of 
three kinds, to wit: Ordinary, Extended, and Special. 

Ordinary claims are generally one acre or less in area, but in 
each case to which they apply there are numerous exceptions, 
provisos and variations, depending for the most part on local 
topographic conditions, and also to a minor degree on the classi- 
fication of land upon which the claim is located ; that is, whether 
it be Crown, Native, Native ceded, Private, or Reserve. 

Extended claims are generally five acres or less in extent, with 
also several exceptions and variations. 

Special claims may be of any size, up to 100 acres. 

In all these cases the applicant for ground may locate any 
area desired so long as he does not exceed the above mentioned 
maxima; and also as many of them as may be represented by 
the " Miner's Rights" he holds. 

In staking, substantial posts or piles of stones must be set at 
each corner, and trenches dug, or finger posts set up on each 
stake indicating the direction to the next corner. 



BRITISH AUSTRALASIAN MINING LAW 127 

Labor requirements for the maintenance of title to claims be- 
gins very shortly after the act of staking; within 48 hours in the 
case of the Ordinary Alluvial, within 14 days in the case of an 
Extended Alluvial, and in the case of a Special claim within the 
period set by the Warden in granting it. In regard to amount, 
at least one legal shift (eight hours) per 24, per legal working 
day, must be applied on Ordinary and Extended claims, and at 
least two shifts on Special claims. Numerous conditions, such 
as acreage and age of claim, and class of land upon which it is 
filed, increase the amounts required. On Mineral Prospecting 
Warrants work must begin within three months from date of 
issue, and at least the labor of two men for one legal shift per 
legal working day per 100 acres of area is required. On Mineral 
Leases work must begin within six months. During the succeed- 
ing 18 months at least one workman per 10 acres per legal working 
day is required; thereafter, two workmen per 10 acres. 

The registration of Ordinary claims does not seem to be obliga- 
tory, but the transfer or conveyance of a part or all of such a 
privilege is not legal unless registered, and registration of the 
same will be refused unless the privilege itself is registered. Con- 
sequently, it is the general custom to register very shortly after 
the receipt by the claimant of the certificate which evidences 
them. Registration fees are moderate. 

As soon as Ordinary claims are staked, and all provisions of the 
law in relation thereto are complied with, the production of gold 
therefrom may begin, and may be continued indefinitely there- 
after without payment of fees, dues, taxes, royalties or any 
government imposts of any kind, so long as the title is kept valid 
by the annual renewal of the " Miner's Right" on which it is 
based, and the performance of the labor conditions prescribed 
by the Regulations that are from time to time promulgated by 
the Minister of Mines and his subordinate officials. But no 
other mineral or metal than gold may be recovered or taken 
possession of. 

On Extended and Special claims an annual fee per acre or 
fraction thereof is due and payable in advance, which varies from 



128 INTERNATIONAL MINING LAW 

one shilling to 7s. 6d., according to conditions determined mainly 
by the age of the claim, and the status of the land on which it is 
located. 

Ample regulations exist in the law for the acquisition of water 
and timber-cutting privileges, mill, smelter, residence and work- 
shop sites, and for all other purposes properly pertaining to the 
occupation of mining, and on reasonable terms. 

A mining claim is considered to have been abandoned if the 
rent, royalty or license fee is in default for twelve months; or 
when for any continuous period of one month it has been entirely 
unused for its proper purpose; if there are buildings and machin- 
ery upon it, the period is three months. 

All mining privileges are regarded legally as chattel interests, 
and may be sold, incumbered, transmitted, seized under writ for 
execution, or otherwise disposed of. 

No royalty, rental, claim license or other dues are imposed by 
the State on the production of gold. 

On the other hand, no form of mining privilege capable of 
being issued under the law permits the holder thereof to mine, 
produce, take possession of, or realize upon any other metal or 
mineral that may be found, unless the privilege under which he 
is operating specifically grants the right to mine the same; and 
further, until that right has been embodied in a lease from the 
State, issued from the office of the Minister of Mines, and in the 
form and under the conditions prescribed by the law, and amend- 
ments thereto. 

Any form of prospecting license may be converted at any time 
into Mineral Licenses giving the right to work for a specified 
metal or mineral other than gold. 

A Mineral License cannot exceed 320 acres in area, and the 
rental is 2s. 6d. per acre per annum in advance. The government 
also reserves the right to impose a royalty that may not be less 
than 1% nor more than 4% on the value of the product at the 
mine. But all sums paid as royalty in any one year may be 
applied as a reduction of the rental due at the beginning of the 
next year. 



BRITISH AUSTRALASIAN MINING LAW 

QUEENSLAND 

(Law of 1S9S, with amendments to January 1st, 1917) 

The State claims the exclusive ownership of gold wherever 
found within its territory; and of silver, except on certain tracts 
alienated in accordance with the provisions of Sec. 22 of the 
Crown Land Alienation Act of 1860, with Sec. 32 of the Crown 
Land Alienation Act of 1868, and with Sec. 21 of the Mineral 
Lands Act of 1872; also of Copper, Tin, Opal and Antimony, 
excepting on lands alienated in fee simple prior to December 
29th, 1909. Coal, on public lands, and also on lands subject to 
the " Agricultural Lands Special Purchase Act" of 1901 is also 
exclusively the property of the State. Finally, all other metals 
and minerals occurring on public land or on private property, 
excepting where the latter has been alienated in fee simple prior 
to December 29th, 1909, are the exclusive property of the 
State. 

The State will not sell its mineral rights, but does allow the 
filing of mining claims upon them, and protects such locators while 
prospecting and development work is being conducted thereon, 
and when such claimants are ready to begin production it provides 
for the conversion of their claims into leases for given terms of 
years, at stated rentals and royalties as hereinafter detailed. 

Prospecting is not free. A license, called a " Miners' Right" 
is required. This document is issued to any individual not of 
Asiatic, African, or Polynesian birth or ancestry, for any period 
up to 10 years, on payment of a sum at the rate of five shillings 
for every year for which the license is to be in force. It is not 
transferable. Any number of these may be purchased by an 
individual. Another form of the same document, called a 
"Consolidated Miners' Right," is purchasable by individuals, 
partnerships, corporations, etc., good for any part or the whole 
of said maximum term, and costs a sum per year of the term 
equal to the number of names upon it multiplied by five shillings. 

A holder of either one of these forms of " Right" has the privi- 
lege of prospecting and exploring on public land, locating claims 



130 INTERNATIONAL MINING LAW 

and mining thereon; also of acquiring mining property under 
lease direct, or by purchase from others, or of converting claims 
into leases; all this, however, only when operating strictly in 
accordance with the provisions of the law, and the regulations 
thereunder. 

When mining claims and leases are so acquired, registered, 
and maintained in force, conveyancing rights on the same are 
complete, except that the grantee in each case must also be the 
holder of a Miner's Right or of as many of them, in single or 
consolidated form, as the number of claims to which the title is 
passed. 

All property acquired by virtue of a Miner's Right is deemed to 
be a chattel interest, in the common law meaning of the term. 

Miner's Rights are renewable at the date of their expiry on the 
same terms as those upon which they were first purchased. 

From all mining claims properly located and maintained, and 
from all mining leases secured, the holder thereof is entitled to 
the absolute possession of all gold and other metals (precious or 
base) and minerals, recovered and won therefrom in legal and 
proper ways. 

However, as a necessary antecedent to the location of claims 
on public land, the region must be a proclaimed goldfield, from 
which rule there is no variation, except in the case of the first 
discovery made upon unproclaimed land. 

When such a discovery is made, the discoverer is required to 
report the same in writing at once at the office of the nearest 
District Warden, and such report, when posted on the outside 
of the office of the Warden, has the effect of a temporary or pro- 
visional proclamation of a goldfield in the shape of a square area, 
the boundary lines of which run towards the cardinal points of 
the magnetic compass, the sides being each a mile in length and 
so placed as to locate the discovery in the approximate center of 
the area. But before posting such notice the Warden must 
examine the find, and decide whether it is of sufficient importance 
to warrant such a provisional proclamation, and it is within his 
power to refuse the posting. If it is allowed, the matter goes to 



BRITISH AUSTRALASIAN MINING LAW 131 

the Minister of Mines who, at his discretion, may accept the deci- 
sion of the Warden, and formally proclaim the area, or he may 
defer action until he, or some officer appointed by him for the 
purpose, has examined and reported upon the discovery. If this 
report is unfavorable, the provisional proclamation is formally 
cancelled and the claim of the discoverer disallowed. If it is 
favorable, the region is formally proclaimed a Public Digging. 

It is in the power of the Governor to pay to the recognized 
discoverer of a new goldfield, a cash reward of £500, if the dis- 
covery is located 20 miles or more from any other workings, and 
if there are at work there, within four months after the discovery, 
200 or more miners. Or, if there are 500 miners at work there at 
the end of six months, the reward is £1000. 

A holder of a Miner's Right may locate and operate any desired 
number of unit claims, so long as the same are worked as pre- 
scribed by the law and the regulations thereunder. 

The process of location consists of setting substantial posts or 
monuments at each corner, and the cutting of direction trenches 
at their bases. Registration is obligatory within seven days of 
staking. Work must begin within seven days thereafter. 

The sizes of prospecting areas for gold are as follows: If 
outside the limits of a proclaimed Public Digging, 400 yards 
square. If within such limits and distant three miles or more 
from the nearest operating mine, 300 yards square. If distant 
from one to three miles, 200 yards square. If distant between 
400 yards and a mile from the same, 150 yards square. No 
prospecting area is allowable nearer than 400 yards to an opera- 
tion mine. 

The sizes of prospecting areas for any metal or mineral other 
than gold or coal are as follows: If outside of the limits of a 
proclaimed mineral field, 160 acres. If within such limits, and 
distant 10 miles or more from the nearest operating mine, 40 
acres. If distant between five and 10 miles, 20 acres. If distant 
between one and five miles, 10 acres. No prospecting area is 
allowable within one mile. 

All such prospecting areas must be staked off as a square block, 



132 INTERNATIONAL MINING LAW 

with substantial posts at each corner, and at a conspicuous point 
within the lines a notice must be posted giving name or names of 
claimants, the number and date of their Rights and the date of 
location. Registration must take place within seven days, and 
must be renewed monthly. Such re-registration, however, may 
be refused at the discretion of the District Warden, who may in 
lieu thereof demand that the prospectors stake off a claim or 
claims, or take out a lease. 

Labor requirements on a prospecting area of either kind are the 
labor of not less than one man for one legal shift (eight hours) per 
legal working day, Sundays and holidays excepted. 

Report of the discovery of payable ore must be made within 14 
days, whereupon the Warden must examine the prospect as soon 
as possible, and if in his opinion it is promising, he is authorized to 
allot the proper number of claims to the discoverers, and also, in 
addition, a prospecting claim of dimensions varying in size in 
accordance with his view of the comparative importance of the 
find. If on such claims minerals other than gold or coal are 
found they must be reported to the Warden within 14 days, who, 
after examination, if in his opinion the discovery is of sufficient 
importance, will allot a mineral prospecting area to the discoverer 
or discoverers, and register the same in their name. Labor 
conditions on such areas are the same as on a gold prospecting 
area. 

The size of an ordinary gold-reef claim is 50 by 400 feet, the 
first dimension to be laid off along the strike of the reef. The tract 
must be rectangular in shape, and such part of the width as the 
locator may desire may be laid off on either side of the line of 
strike. Ten of such claims, adjoining, may be taken up as a 
block by an association of names, each being the holder of a 
Miner's Right. Until such a claim or block of claims has become 
payable, the labor conditions affecting maintenance are the 
same as hereinbefore stated. When, production begins the re- 
quirement is the labor of one man per legal day, per 50 feet along 
the reef. Registration is obligatory within seven days after 
staking. There are no extralateral rights. 



BRITISH AUSTRALASIAN MINING LAW 133 

The unit alluvial claim is a rectangle measuring 100 by 50 feet, 
but in wet or rocky ground where shaft sinking is necessary the 
unit is 100 by 100 feet. All such claims are to be registered as 
soon as their boundaries are defined to the satisfaction of the 
Warden. The labor requirements are one shift per legal working 
day. Various other sized claims of the alluvial class are specified 
by the law as allowable, such as river or creek, puddling, aurifer- 
ous sand, prospecting, extended hydraulic, dredging, amalga- 
mated, etc., some depending upon the method of operation, and 
others upon topographical conditions, nature of gravel, etc. All 
require registration and labor conditions similar to those already 
mentioned. In the case of dredging areas a rental of 2s. 6d. 
per acre per annum is required, payable in advance. 

The law also makes ample provisions for water, ditch, and 
reservoir sites, for machinery, tramway and tailings areas, and for 
business, residence and garden tracts. For all of these an acreage 
rental is payable in advance in various reasonable sums. Regis- 
tration of all such claims is obligatory, and surveys at the claim- 
ant's expense may be required by the Warden. 

Leases 

The conversion of claims into leases is not obligatory, but is 
desirable and is generally effected as soon as it becomes evident 
that the property has become valuable. These franchises are of 
two kinds, namely, Gold Mining Leases and Mineral Leases. 

The Gold Mining Lease confers the right to work for gold only. 
Its area cannot exceed 50 acres, and its term 21 years, renewable 
once. The rental is £1 per acre per annum in advance. There 
are numerous exceptions' and provisos to these standard figures 
depending upon various conditions. Maintenance is based upon 
reasonably continuous usage, and compliance with the prescribed 
regulations of the law. 

The Mineral Lease conveys the right to work only for such 
metals or minerals as are specified in the document, and its 
details are largely a matter of bargain between the applicant and 



134 INTERNATIONAL MINING LAW 

the government officials in charge of the business, excepting as to 
certain fundamentals, such as the area, which cannot exceed 160 
acres (except in the case of coal mines where a larger grant is 
made); the term, which is 21 years with the right of one renewal 
of equal length; and the rental, which is 10 shillings per acre per 
annum, payable in advance, excepting again in the case of coal, 
where a lower rental is provided. 

No Mineral Lease covers the production of gold. If that metal 
is found, and it is the desire of the leaseholder to work for it in 
connection with any other metal that he may be producing, a 
special license to that effect must be procured. The same rule 
also applies to any other metal or mineral that may from time to 
time be found, other than those specified in the contract. In the 
case of gold, when recovered from the ores of a mineral lease, the 
government imposes a royalty of 1% of the gross value of the 
output of that metal. 

Mining on Private Land 

No mining is allowed on improved private land, nor within 150 
yards of the same; nor if it is less than one-half an acre in area and 
lies within the limits of a township, unless the consent of the 
owner is obtained, and unless the right granted exempts the sur- 
face and a certain distance below it (as arranged by the Warden) 
from all operations. 

To enter any private land for purely prospecting purposes, a 
written permit must be obtained from the Warden. Such a 
permit may be given for an area not to exceed 640 acres, for a 
term not more than 30 days, and in consideration of a deposit 
of 20 shillings to compensate the owner for possible damage to 
the premises during the search, which must be confined simply 
to looking over the surface. This sum is returnable to the permit 
holder if no damage occurs, otherwise it is payable in whole or 
in part to the owner of the land. Only one such permit is 
obtainable at the same time for the same tract of land, and it 
cannot include more than five individuals. If for any reason 



BRITISH AUSTRALASIAN MINING LAW 135 

the Warden declines to issue the permit, appeal may be had to 
the Minister of Mines. 

If, after searching over the area covered by such a permit the 
holder or holders thereof desires to acquire mining rights thereon, 
notice must first be given to the surface owner or his Agent, or if 
the land is unoccupied and its owner cannot be located, a notice 
must be conspicuously posted upon the tract desired, which 
must be staked out as in the case of a mining claim. Written 
application for it, together with an accurate description of its 
metes and bounds, is then filed with the Warden who, if it is 
approved, and no objections are lodged within a short period, 
will grant a lease, which must at once be registered. Thereafter 
the leased area must be operated strictly in accordance with 
the terms of the mining law and regulations. This area and 
conditions are identical with those prescribed for leases on 
public lands. 

SOUTH AUSTRALIA 

(Law of 1893, with amendments to date of January 1st, 1917) 

The Province opens to the prospector and miner its entire 
territory, except areas alienated previous to 1886 for gold, and 
except areas alienated previous to 1888 for all other minerals 
and metals. 

A prospecting license, called a " Miner's Right" is required, 
which must be kept in force indefinitely by all who desire to 
continue holding mining property. The initial cost is five shil- 
lings per annum, and renewal cost the same. It covers all metals 
and minerals, but is good for the location of one claim only. 
However, any desired number may be held by an individual, 
except that no person may hold by virtue of them more than one 
alluvial claim at one time, although he may hold by purchase 
as many as desired. 

Three kinds of claims are recognized, viz., Gold Claims, Min- 
eral Claims and Coal Claims. Details of the last, which includes 
also Oil, Natural Gas, Salines, etc., will not be given. 

10 



136 INTERNATIONAL MINING LAW 

Gold Claims are of two kinds, namely Alluvial Claims and 
Reef Claims. The former covers the right to operate only the 
loose surface soil, or gravel, or cement; while the latter covers 
operations in seams, lodes, veins, deposits, etc., in rock in place. 
Both carry the right to own and produce any other metal or min- 
eral found in mechanical or chemical association with the gold. 

The standard Alluvial Claim is 30 feet square, and is called a 
"one man claim," but a prospector who is seeking new ground 
is allowed to stake off what is called an " alluvial prospecting 
area," and to hold exclusive prospecting rights in it while testing 
it, but no longer. This area varies in size according to its dis- 
tance from the nearest occupied and operating alluvial area as 
follows : 

If distant 100 yards or more 100 yards square. 

If distant one mile or more 150 yards square. 

If distant three miles or more 500 yards square. 

When gold, or any other desirable alluvial metal or mineral, 
is found on such a " protected" area, the discoverer is entitled 
to stake out, inside of the area, in addition to the one claim 30 
feet square that his license calls for, additional claims as follows, 
according to the distance of the new discovery from other occu- 
pied and operating areas: 

If distant half a mile 3 claims, each 30 feet square. 

If distant one mile 4 claims, each 30 feet square. 

If distant two miles . 6 claims, each 30 feet square. 

If distant three miles or over ... 10 claims, each 30 feet square. 

If the ground is very wet, and shafting is required to reach the 
pay streak on the bedrock, at the discretion of the district Warden 
claims 30 by 60 feet may be allowed. If the gold occurs in a 
cement that must be blasted, the claim size is 36 by 72 feet, 
while stream or creek claims are 60 feet in length along its course 
and 120 feet wide. 

Reef Claims of the ordinary kind are 100 feet in length along 
the line of outcrop, and 600 feet wide across it, the locator being 
allowed to apportion this width in relation to the line of outcrop 
as he sees fit, so long as it is included. But it must be laid out 



BRITISH AUSTRALASIAN MINING LAW 137 

as a rectangle. As in the case of an alluvial discovery, a pros- 
pector who has found a promising reef outcrop, or indications 
thereof, and desires time for explorations before actually deter- 
mining the position of his lines and corners, may stake out a 
"reef protection area" of double the length of the ordinary reef 
claim, which gives him exclusive rights therein for three months. 
Before the end of this period he must decide upon his lines 
finally. Such a prospector, who has made a new discovery, is 
allowed to stake out within this protected area, in addition to 
the ordinary reef claim, what is called a "Reef reward claim, ,; 
which varies in size according to its distance from the nearest 
occupied and operating reef claim, as follows: 

If distant one to five miles 200 by 600 feet 

If distant five to 10 miles 300 by 600 feet 

If distant over 10 miles.' 400 by 600 feet 

Alluvial and reef discoveries must be reported within seven 
days to the authorities, but the protection area may be staked 
out before complying with this regulation. 

Registration must be effected within 30 days of final staking. 
A suitable blank form is provided for this operation by the Mining 
Registrar. The prospecting license must be attached to it, and 
a fee of two shillings and sixpence paid. A certificate of regis- 
tration is then issued to the applicant, and his license returned 
to him with the number of the certificate endorsed upon it. 

Holders of gold claims have the right to produce any and all 
other metals and minerals that may be found in mechanical or 
chemical combination with the gold. 

The staking of gold protection areas or claims consists in 
erecting at each corner a post not less than three inches thick, 
and projecting not less than three feet above the surface. From 
each post two trenches must be dug pointing towards the next 
two corners, each trench to be not less than three feet long and 
six inches deep. In very rocky ground direction piles of loose 
stones may be substituted. On each post must be marked 
the claim number and date of staking. 



138 INTERNATIONAL MINING LAW 

Any number of adjacent gold claims may be consolidated or 
amalgamated into a " block," by making application to the 
authorities accompanied by a fee of three shillings and sixpence. 

In addition to keeping the " Miner's Right" in force, a claim is 
maintained in force only by the labor of one man or more for 
eight hours during the 24 of the day, except on Sundays, and 
public holidays, and on Saturdays, when four hours' work suffices. 
When claims are consolidated into a " block" the labor conditions 
are somewhat less. 

Tailing areas (not exceeding one acre), Tunnel areas (20 feet 
on each side of its line), Rubbish areas (200 feet square, and 
supposed to be located at the entrance to a tunnel) and Dam or 
Machinery areas (not over 4 acres) may be located, and exclusive 
use thereof secured, at a cost in the first three cases of five shillings 
per annum, and in the last two of five shillings per acre per 
annum. There are also simple and inexpensive provisions for 
water and ditch rights. 

Mineral claims may be of any area up to 40 acres, but must be 
laid out in rectangular form, with lengths not greater than twice 
their width, and sides orientated magnetically. Such claims 
carry the right to mine for all metals and minerals except gold. 
When this metal is found in the ore produced from a mineral 
claim, the owner has the preferential right to locate a gold claim 
within and on top of his mineral claim, and must do so or lose 
the right to produce the gold. To maintain title, the claimant, 
in addition to keeping his " Miner's Right" continually in force, 
must have two men constantly at work for 8 hours of each 24 
(4 hours on Saturdays) excepting Sundays and public holidays. 

When ore is discovered in presumably payable quantity, the 
fact must be reported to the authorities. Registration is pre- 
scribed as in the case of Gold Claims. 

Leases 

All varieties of mining claims may be and are expected to be 
converted into leases as soon as they become payable (except 
alluvial claims). The procedure for conversion is simple and 



BRITISH AUSTRALASIAN MINING LAW 139 

inexpensive. They may be taken out on single claims or blocks 
of claims, and when such consolidations are effected the work 
required for maintenance may be concentrated at one or more 
points at the will of the claimant. The maximum area for a 
gold claim lease is 20 acres, and for a mineral lease 40 acres. 
The maximum term is 42 years in either case. The rental is 
one shilling per acre per annum, in addition to which the Govern- 
ment imposes a royalty of 2}^ % on the net profits. The working 
requirements are the labor of at least one man per five acres or 
fraction thereof, with equitable reductions of this requirement 
when animal power or machinery is installed. 

The maximum area for a single mineral lease is 40 acres, but 
consolidation into a block may be effected, as with gold claims. 
The maintenance conditions are the labor of one man per 10 
acres during working days. The maximum term is 42 years, 
and the annual rental and royalty the same as with gold leases. 
If the mineral found and produced contains gold, a gold lease 
must also be taken out. 

The law provides equitable and inexpensive procedures by 
which prospecting and mining may be carried on upon alienated 
land, where the Government has reserved the mineral rights 
in making the grant, and also for expropriation of areas that 
prove to be valuable for their mineral contents and where the 
Government has not reserved its mineral rights in the grant, 
provided the owner has not already exercised his preferential 
rights to prospect, explore, and produce. 

TASMANIA 

(Law of 1905, with amendments to date of January 1st, 1917) 

Prospecting is not free. A document called a " Prospecting 
License''' is required by all who engage in the occupation, which 
costs ten shillings per annum. One may be taken out by any 
individual over 15 years of age, or by the registered Manager of 
a registered mining company, or the registered Agent of a mining 
company that is not registered in Tasmania, or the duly author- 
ized representative of a partnership. It conveys the exclusive 



140 INTERNATIONAL MINING LAW 

right to prospect for any metal or mineral, on any selected area of 
Crown land that may be applied for, and to enjoy full protection 
in the occupation of the same. But it does not give the right 
to remove or realize upon any substance found while pros- 
pecting. 

Mining is not free. A document called a " Miner's Right" is 
required, which costs five shillings per annum, and may be pur- 
chased by any individual legally capable of taking out a pros- 
pecting license. This confers the right to take possession of, 
occupy and use one claim upon any public land at the time avail- 
able under the provisions of the law, and in accordance with its 
rules and regulations, to mine and produce therefrom, and 
realize upon any metal or mineral produced, and to do all other 
acts properly necessary to the business of mining. 

The State also issues a document called a " Consolidated 
Miner's Right," which simply represents any number of single 
" Miner's Rights," and which costs a sum equal to five shillings 
multiplied by the number of " Rights" it covers, and confers the 
same rights and privileges. 

Any land duly staked and registered and thereby acquired 
under either form of " Miner's Right" is held to be a chattel 
interest under the common law definition of that term, and so 
long as the " Right" is maintained in good order and the property 
operated in accordance with the law and regulations thereunder, 
any gold or other metal or mineral found upon it becomes and 
remains the absolute property of the holder thereof. 

Mining claims cannot be staked off on prospecting areas 
(except by the holder of the area), nor upon improved or culti- 
vated land, nor upon tracts already occupied by ditches, reser- 
voirs, or wells. 

Prospecting Licenses, Miner's Rights and Consolidated Miner's 
Rights are renewable annually at the same cost as that of their 
issuance. Any mining tenement (prospecting area, mining claim, 
or block of claims) is automatically abandoned and forfeited when 
the license or " right" under which it was located is not renewed 
at the date of its expiry, or within seven days thereafter. 



BRITISH AUSTRALASIAN MINING LAW 141 

The size of a prospecting area obtainable under a prospecting 
license is 20 acres for gold alone, 40 acres for all other metals or 
minerals (except coal, shale, slate, freestone or limestone), and 
100 acres for these excepted substances. But upon the recom- 
mendation of the District Warden the Minister of Mines is 
empowered to enlarge the last mentioned area up to a maximum 
of 320 acres. 

Prospecting areas are acquired by staking the corners of the 
same in the usual way, and by planting a post in the center of the 
tract upon which is clearly and legibly written the words " Pros- 
pecting Area/' together with the name of the claimant, the area 
of the claim, the date of the staking, the metal or metals or min- 
eral for which search is being made, and the relative position of 
such post and notice on the tract. This notice must be main- 
tained in good order during occupancy, and a copy of it must be 
filed for registration at the office of the nearest Registrar at the 
earliest practicable date. Work must begin within 48 hours 
thereafter, and continue to the extent of at least the labor of one 
man during 40 hours per week. If the area has been enlarged 
by special permit of the Minister of Mines, the labor require- 
ments are correspondingly increased. During tenancy no mate- 
rial of value may be taken away without special permit, except 
assay samples, and no work other than bona fide exploration for 
metals or minerals may be done upon it. Finally, if the holder 
decides to abandon the tract, a notice to that effect must be 
filed with the Registrar without delay. 

The unit mining claim that may be acquired under the au- 
thority of a single or consolidated Miner's Right is a rectangle 
50 yards square, or the equivalent of about half an acre. Any 
number of these up to ten may be staked as a block when con- 
tiguous, by an association of " Rights" holders, according to the 
number of individuals forming the association. The process of 
staking consists of planting substantial posts at each corner, one 
of which is called the " Datum Post." To this must be firmly 
affixed a notice inscribed " Miner's Right Claim," under which is 
legibly written the name of the claimants, the date of location, 



142 INTERNATIONAL MINING LAW 

and the relative position of the notice to the rest of the tract 
This must be constantly maintained in good order and condition. 
In addition, direction trenches must be dug at each corner. 
Within 48 hours a copy of the notice must be filed with (or mailed 
to) the nearest Registrar. Within the same period also bona 
fide work must begin to the extent of not less than the labor of 
one man per 24 hours per legal working day, per unit claim of 
the tract. 

The registration fee for prospecting areas and single or blocked 
mining claims is 2s. 6d. In each case the Warden has the right 
to demand a survey at the expense of the claimant. Survey fees 
are reasonable. Claimants are entitled after registration to 
receive from the Registrar a Certificate, which is prima facie 
evidence of the right of tenancy of the holder. After registration, 
conveyancing rights are complete, providing the grantee is the 
legal holder of a sufficient number of " Miner's Rights" to receive 
the transfer. 

Two kinds of leases are granted, called respectively Gold 
Mining Leases and Mineral Leases. They are issued only by 
the Minister of Mines with the consent of the Governor. The 
first mentioned, when on Crown land, conveys the right to operate 
for gold only. The maximum area is 40 acres, and the term 21 
years, renewable once, and the rental is £1 per acre per annum. 
The Mineral Lease on Crown land conveys the right to operate 
for all metals or minerals except gold. But if gold is found in 
and recovered from its ores, the lessee must at once report the 
circumstance to the Minister of Mines, who may demand that 
the Mineral Lease be suspended and a Gold Lease substituted. 
But the lessee has the right to decline surrender on undertaking 
to pay a royalty of 10 shillings per ounce on all gold recovered. 
The maximum area for a mineral lease is 80 acres, excepting in 
the case of coal, shale, slate, freestone or limestone, when it may 
be as much as 320 acres. The term is 21 years, renewable once, 
and the rental is five shillings per acre per annum in advance 
excepting for coal, shale, slate, freestone and limestone, for which 
the rate is 2s. 6d. 



BRITISH AUSTRALASIAN MINING LAW 143 

Alluvial leases are obtainable for the beds and banks of streams 
running over Crown lands. The maximum area is 40 chains 
along the line of the channel by five chains on each side of the 
center, and the Governor has the right to reduce these dimen- 
sions, or to refuse the application entirely. The maximum 
term is 10 years, and the rental five shillings per acre per 
annum. 

Applications for leases are filed with the District Warden or 
the Minister of Mines, and must be accompanied with a deposit 
of money equal to a half year's rental of the land applied for, 
plus the surveying fee. 

In gold mining leases a sum not less that £10 per acre per 
annum must be expended by the lessee on the ground in the 
shape of labor and general improvements. For mineral leases 
the requirements are the equivalent of two pounds per acre per 
annum. 

All leases must be registered, after which conveyancing rights 
are complete, but the fact of a transfer must be endorsed on the 
document itself and by the Minister. Registration fees in general 
are reasonable. It is not necessary that the applicant for a 
lease, nor the grantee in the case of the transfer of one, should 
be the holder of a ''Miner's Right." 

Ample provisions are made in the law for Water, Ditch, 
Reservoir, and Timber Rights, for Machinery, Tramway, and 
Tailings Sites, and for the establishment of Drainage Areas. 
Also for all necessary easements. 

Prospecting licenses may be issued to individuals under the 
age of 18 years, but not " Miner's Rights." 

Mining on Private Land 

Written application for a permit to enter must first be made 
to the Warden. They are granted for periods not to exceed 90 
days, and cover such an area as, in his opinion, seems right under 
the circumstances. The applicant must also deposit with the 
same official such a sum of money as, in his opinion, is sufficient 



144 INTERNATIONAL MINING LAW 

to cover possible damage to the premises. This deposit is 
returnable if no injury results, otherwise it is payable in part 
or wholly to the surface owner. Such a permit conveys the 
right merely to inspect the surface of the premises but not to do 
any digging, or take away anything found except as assay 
samples. The latter must not exceed 28 lbs. in weight. If, 
after prospecting, the holder of the permit desires to explore 
the ground, he may mark out an area, and apply for a lease on 
the same, at the same time notifying the surface owner of his 
intentions, and showing him the area selected. He must also 
post a notice at a conspicuous point on the chosen tract, giving 
detailed description of the same and supply a copy of this to the 
district Warden. The area, term, and rental conditions of the 
lease, if allowed,, are the same as those granted for leases on 
Crown lands. 

VICTORIA 

(Law of September 16th, 1915, with amendments to date of January 1st, 

1917) 

The State claims the sole and exclusive ownership of the 
precious metals (gold, silver and platinum), whether existing 
on the public domain, or on privately owned property, except 
where, in the deed of grant for the latter, the mineral rights 
have not been reserved; also of all other metals and minerals, 
except in privately owned property. The State does not give 
a fee simple title to any mineral land, but allows the location of 
claims and prospecting areas, and the temporary possession of 
them for prospecting and developing purposes, under the regula- 
tions of the law, and then requires the conversion of the same 
into leases, under which production may take place. But in 
the case of alluvial claims, production may begin immediately 
after staking and registration, and leases are not necessary. 

Prospecting is not free. A license is required. The document 
is called a " Miner's Right." An unlimited number of these 
may be taken out by any individual of either sex, if of legal 



BRITISH AUSTRALASIAN MINING LAW 145 

age and status. Each "Right" costs two shillings and sixpence 
per annum, and may be taken for any period up to 15 years. 
Each is good for the location of one mining claim, and also one 
residence site and water right. 

The following varieties of claims may be located: 

1. Ordinary Quartz Claim. 100 feet along the line of out- 
crop, by 600 feet in width, with ownership also of all the alluvial 
on the surface. 

2. Quartz Prospecting Claim. 400 feet along the line of 
outcrop, by 600 feet in width. But such a claim must be at 
least 1500 feet distant from any other claim on the same reef 
or lode. 

3. Quartz Prospecting Area. 1500 feet square, but must be 
distant at least two miles from the nearest operated mine. This 
variety of claim may be held for 12 months only, and one or 
more men must be kept at work upon it on legal working days. 
Such an area does not confer the ownership of any alluvial 
deposits that may occur upon it. When reef gold is discovered 
within its lines the claimant is under legal obligations to con- 
vert it into a lease as soon as it becomes evident that the 
proposition can be worked at a profit. The maximum area 
that will then be granted is 800 feet along the outcrop by 600 
feet in width. 

4. Quartz Tunneling Claim. Any holder of an Ordinary 
Quartz, a Quartz Prospecting, or a Mineral Claim may also take 
possession of an area outside of and beyond his claim for a tunnel 
site. The maximum size for this class of claim is 3000 feet by 
12 feet on either side of the center line of the tunnel, together 
with a tract 300 by 120 feet at the entrance. 

5. Alluvial Claim. There are ten kinds of this order of claims, 
depending upon various conditions such as topography, depth of 
gravel and bed rock, distance from other claims, etc. All must 
be of rectangular shape when practicable, with length no more 
than three times their width . As to size, they vary from 75 by 100 
feet to 23 acres. 

6. Mineral Claim. Three acres in size. But an association 



146 INTERNATIONAL MINING LAW 

of ten individuals, each holding a Miner's Right, may take up a 
tract not exceeding 30 acres in extent. 

7. Mineral Prospecting Claim. Allowable area five acres, 
but it cannot be located nearer than one mile from a mineral 
claim. Term of occupancy 12 months. Upon discovery of 
payable ore it must be converted into a three-acre mineral 
claim. 

On all these varieties of claims the act of taking possession 
consists of erecting substantial posts or stone monuments at 
each corner, with trenches three feet long and six inches deep 
at the base of each, and pointing towards the next corner. 
Registration is required within seven days thereafter. Upon 
registration the Registrar delivers to the claimant a notice, 
in specified form, which must be posted at a conspicuous point 
on the claim within the next seven days, and maintained there 
for the following seven days. At the expiration of the last 
term, if no objection to the registration has meantime been 
filed with the Registrar, the latter delivers to the claimant a 
Certificate in a specified form, which is prima facie evidence of 
title. A survey is not obligatory, but is considered desirable. 
Surveying costs and registration fees are moderate. After 
registration, conveyancing rights are complete. 

The law makes satisfactory provisions for water rights, and 
for machinery, residence, and business sites. 

All claim titles are maintained in force by labor, which must 
begin within fourteen days after registration, and thereafter 
must be continuous on legal working days. Details are as 
follows : 

For Ordinary Quartz Claim, one legal shift (eight hours per 
24) per day, per each 100 feet along line of reef, if the mine is in 
pay. Half that amount if it is not. 

For Quartz Prospecting Claim, one shift per 400 feet of reef, 
or two shifts per 600 feet. 

For Ordinary Alluvial Claim, one shift for each unit area of 
75 by 100 feet, if the operations are in shallow ground (under 
40 feet) . Half that number during the first two months of opera- 



BRITISH AUSTRALASIAN MINING LAW 147 

tions. There are fourteen modifications of this requirement, 
depending upon depth to bed rock, nature of claim, distance from 
other workings and other considerations. 

Corner stakes, trenches therefrom, and other landmarks 
required by the law, together with all notices posted thereon, must 
be continually maintained in good order and repair. 

The " Miner's Right" must be kept on hand and available at 
all times, for inspection visits from the authorities. 

Each "Miner's Right" carries with it the right to locate, own, 
and occupy a residence site, rectangular in shape, and in size 
ranging from one-quarter to one acre, according to whether it is 
within the limits of a town site, or near one, or adjoining the 
claim. 

There is no obligation to convert claims into leases, but it is 
usually found advantageous to do it as soon as the property is 
proven to be of value. 

Leases are of two kinds, namely, Gold Mining and Mineral. 
The former carries the right to work for gold only, the latter to 
recover any other mineral or metal. The maximum area for 
both kinds is 640 acres, and the maximum term 15 years, re- 
newable indefinitely. The rental for the former is 20s. 6d. 
per acre per annum, and for the latter from one shilling to 20 
shillings per acre per annum at the discretion of the Minister of 
Mines. 

To obtain leases, formal application must be made to the 
Governor, who has the right to refuse to grant them under certain 
conditions, and, when allowing them, to specify and demand all 
terms thereof. In each lease the particular metal or mineral 
that is expected or desired to be worked for must be specified. 
If thereafter other metals or minerals are found and desired, a 
license to work for them must be procured from the Minister of 
Mines. The labor conditions for maintenance of title are largely 
a matter of bargain between the applicant and the Governor-in- 
Council, when applying for the lease. 

The State imposes no royalties of any kind on the production of 
any kind of metal or mineral. 



148 INTERNATIONAL MINING LAW 

WESTERN AUSTRALIA 

(Law of 1904, with amendments to date of January 1st, 1917) 

The State asserts its exclusive ownership of gold, silver, and 
other precious metals, upon all land within its boundaries, 
whether alienated or not, and whether these substances occur on 
the surface or underground; also to all other metals or minerals 
on, in, or below the surface, excepting where these latter exist 
on areas alienated in fee simple prior to January 1st, 1899. 

Prospecting is not free. A document called a " Miner's Right " 
is required to be held by all individuals, partnerships, or cor- 
porations who desire to engage in searching for mines. This 
costs five shillings per year, and is renewable indefinitely at the 
same price. Any desired number may be purchased and held 
by one individual, and each one is good for the location of one 
claim on the Public Domain. Every holder of a ''Miner's 
Right" who desires to prospect on alienated land, can obtain 
from the district Warden an additional permit, without extra 
cost, but good for 30 days only, which gives the right to enter 
upon such areas and prospect; provided, however, that he fur- 
nishes to the Warden an indemnity bond sufficient in amount 
to reimburse the surface owner for any damage his activities 
may cause. 

The " Miner's Right" and any such additional permit as may 
be issued under it, confers simply the privilege of walking over 
and critically examining the surface, detaching and taking away 
assay hand samples of outcropping rocks, and testing gravel 
with the pan, but does not allow of the disturbance of the surface 
by digging or making excavations of any kind. Claims also 
may be staked out, but no exploring work may be done upon 
them until they have been approved and registered. 

The law recognizes three classes of unit mining claims, called 
respectively "Alluvial," "Alluvial Extended," and "Reef" 
Claims. Their dimensions vary according to the substance 
they are supposed to contain, and also according to the number 
of locators or miners in the partnership at the time of staking. 



BRITISH AUSTRALASIAN MINING LAW 



149 



What is known as a "One Man's Claim" of the various kinds, 
has the maximum dimensions shown in the following table. 





Alluvial 


Alluvial extended 


Reef or lode 


Gold, silver, platinum 


75 X 75 ft. 


150 X 75 ft. 


75 X 390 ft. 


All other metallic minerals. 


300 X 300 ft. 


600 X 300 ft. 


150 X 390 ft. 


Non-metallic minerals. . . . 


375 X 300 ft. 


900 X 300 ft, 


225 X 390 ft. 


Precious stones • 


150 X 150 ft. 


300 X 150 ft. 


150 X 390 ft. 



In each case the first dimension given is called the "length" and 
the second the "width." 

Claim partnerships up to ten in number are recognized. When 
such an association makes locations, each individual composing 
it being in possession of one or more "Miner's Rights," the 
combination claim allowable is determined in size by multi- 
plying the length of the unit claim by the number of partners. 
Thus, for example, a three-man alluvial claim would be 225 
feet long by 75 feet wide; and a seven-man lode or reef claim, for 
metals and minerals other than gold, silver, and platinum, would 
be 1050 feet long by 390 feet wide. 

All claims must be laid off in rectangular shape, with their 
length along the line of the alluvial channel or pay streak, or 
along the outcrop of the lode or vein as the case may be, and the 
width at right angles thereto. 

The class called "Extended Allu vials"' may only be located 
on abandoned and previously worked ground, or very low grade 
gravels, or upon alluvial areas where, either by reason of exces- 
sive water, large boulders, or other objectionable conditions, 
the expenses of operating are greater than usual. 

Mining properties of all kinds, whether single claims, partner- 
ship groups, company consolidations, or leased areas, are known 
legally as "mining tenements," a very convenient term for 
general use when properly understood. 



150 INTERNATIONAL MINING LAW 

The registration of alluvial claims is not required, it being 
assumed that the owner or owners practically live upon their 
ground and work it continuously until it is exhausted, and then 
abandon it. But registration is not forbidden, and may be 
effected by any claim holder who desires to do so. After the 
first three days of possession after staking, every alluvial tene- 
ment must have one shift of labor per claim, per day of 24 hours, 
put upon it, excepting for Sundays, public holidays, and the 
Saturday half holiday. The legal labor shift is of eight hours' 
length, and on Saturday four hours. Where a number of claims 
are blocked or consolidated, as in partnership or company opera- 
tions, the work for all may be done at one place. 

All other classes of mining tenements must be registered as 
soon after staking as possible, and do not become valid properties 
until they are. The law does not specify any stated time during 
which this act must be performed. The cost is five shillings 
per claim. 

On "Reef" claims (which covers all kinds of metalliferous 
deposits in rock in place), the requirements to maintain title are 
one shift of labor, per two unit claims, per day of 24 hours, with 
exemptions as just mentioned. But this applies only during the 
period of exploration and development. As soon as production 
begins, and as long as it continues, the tenement must be worked 
as continuously as in the case of alluvial properties. 

The district Warden has the power at any time to require that 
a mining tenement be surveyed, in which case the holder is 
compelled at once to deposit the cost of the same. The charges 
for this kind of work range from $10 for an area of one acre or 
less, to $250 for 5000 acres, and may be averaged at about $25 
per diem for the Surveyor's time, he paying for his own 
assistants. 

Reasonable and simple regulations are provided for the staking 
of dredging areas, and their registration. All applications for 
rights of this class, after being approved by the local District 
Warden, must be referred by him to the Minister of Mines, who 
may impose such working and other conditions as he sees fit, 



BRITISH AUSTRALASIAN MINING LAW 151 

excepting that a uniform rental of 2s. 6d. per acre per annum is 
charged, payable, as usual, in advance. 

The registration of claims of all kinds is effected at the office 
of the district Warden. 

It is the expectation of the law that as soon as a claim of any 
kind except alluvial is developed to the point where production of 
ore begins, the holder or holders thereof will call for a lease, and 
provision is made for the conversion of mining tenement into 
leases at any time. Previous to such conversion, except in the 
case of Alluvial and Alluvial Extended claims, production of and 
realization upon ore is not permitted. 

The Governor only has the power to grant leases for mining 
purposes. The areas so obtainable for gold, silver, and platinum 
mining range in extent from 24 to 48 acres, with a maximum 
term of 21 years, renewable for a second term of the same length. 
The rental is five shillings per acre per annum for the first year, 
and 20 shillings per acre for each subsequent year, payable in 
advance. 

For a lease covering metals other than gold, silver, and plati- 
num, and for all minerals except coal, areas ranging in extent from 
48 to 96 acres may be obtained, for the same term (with renewal 
right) as in the preceding paragraph. The rental is five shillings 
per acre per annum, in advance. For coal the maximum area is 
300 acres, and no rental is charged. In lieu thereof a royalty of 
threepence per ton for the first ten years of the period is exacted, 
and sixpence per ton for its remaining years. 

When leases are applied for to operate properties containing a 
metal or metals other than gold, silver, or platinum, or to mine 
for non-metallic substances, or combinations of any of them, the 
particular substance or substances which induced the applicant 
to apply for the lease, and which he expects to recover from his 
operations, must be specified in the application, and all leases of 
this kind must contain a reservation of the precious metals; that 
is to say, they do not convey the right to mine for gold, silver, 
or platinum. 

When any one or more of these precious metals is found to exist 
li 



152 INTERNATIONAL MINING LAW 

in ore produced from a mineral lease, the fact must be at once 
reported to the Minister of Mines. If, in the opinion of this 
official the value of the precious metal or metals recoverable is 
insufficient to make a payable property without the assistance of 
the value of the other metals or minerals that may at the same 
time be recoverable, he may impose upon the lessee a royalty of 
one shilling per ounce of gold recovered. But if he concludes that 
the property could be worked at a profit on the basis of the gold 
contents of the ore alone, he may demand the surrender of the 
mineral lease, and the substitution for it of a gold-mining lease. 
Or, the lessee has the option to agree to pay a royalty of ten 
shillings per ounce of gold recovered, and keep the mineral lease. 

If, after taking a mineral lease, the holder thereof finds unex- 
pected ore yielding substances other than the precious metals, 
and not specified in his lease, he must, under heavy penalty, and 
before producing or realizing upon any of the new material dis- 
covered, report to the Minister of Mines, who, at his discretion, 
may give him permission to operate for the new substance, in 
consideration of the payment of such an increased royalty as the 
Minister may decide upon. 

Every application for a lease must be accompanied with the 
survey fee, and the first year's rental. 

Leased premises may be used only for mining purposes, and 
such other activities as are naturally incidental thereto, and no 
sub-leases may be granted without the written consent of the 
Governor. A fee of 20 shillings is required when the papers for 
a lease of any kind are delivered. 

After the registration of a mining claim, or the delivery of the 
papers of a lease, full conveyancing rights attach to the property, 
subject however to the consent of the Minister of Mines, the regis- 
tration of the instrument of conveyance, and the payment of a 
transfer fee. 

As a general proposition two or more leased areas may be con- 
solidated under one ownership, so long as the total area in such 
consolidation does not exceed 96 acres. But, when it can be 
shown to the satisfaction of the Minister of Mines that a larger 



BRITISH AUSTRALASIAN MINING LAW , 153 

area is necessary, in order to protect operations in the case of a 
vein or lode having a very flat dip, consolidations greater than 
96 acres may be allowed, up to the extent of permitting opera- 
tions to be carried on to a distance of 3000 feet from the sur- 
face, measured on the dip of the ore channel or lode. 

Coal mining leases may be consolidated up to a total of 2500 
acres, and, when the seam worked lies at a depth of over 1000 
feet from the surface, to the extent of 5000 acres. 

During three months after the expiration, forfeiture, or aban- 
donment of a lease, the former owner may remove any machinery 
or other chattels that he may have placed upon it while it was 
in his possession. 

All leases must be arranged for and registered at Perth, the 
capital of the State, where the office of the Minister of Mines is 
located. 

RESULTS 

In the British Australasian states gold production began in 
1851, tin in 1872, copper in 1879, silver (other than that recovered 
from placer gold) in 1880, lead in 1885 and zinc in 1904. The 
value of the output of these metals in the sixty-six year term 
that has since elapsed up to the end of 1916, and the production 
of 1916, is shown in the following table. 

Metal Term Totals Average per year 1916 

Gold 66 years $3,214,597,945 $48,706,029 $40,392,700 

Tin 45 years 144,419,540 3,209,323 4,793,700 

Copper 38 years 287,457,073 7,564,659 20,827,800 

Silver 37 years 286,408,141 7,740,761 8,500,000* 

Lead 32 years 222,907,486 6,965,859 12,000,000* 

Zinc 13 years 201,225,509 15,478,885 19,985,653 



$4,357,015,676 $89,665,516 $106,499,853 

Taken altogether, the output of 1916 shows a gain of nearly 
19% over the average of the term. In detail there were gains 

* Estimated. 



154 INTERNATIONAL MINING LAW 

of 10% in silver, 175% in copper, 72% in lead, 29% in zinc and 
49% in tin. Against these there was only a loss of 17% in gold. 

But these conclusions, being based on values as measured in 
terms of gold, instead of on quantity in terms of any weight unit, 
are not truly representative of the condition of the industry, 
because of the abnormal prices which all the metals except gold 
have commanded during the last three years of the term, coupled 
with the very serious loss in the purchasing power of the yellow 
metal. To secure a better basis for a comparison of the Aus- 
tralasian results with those of the other principal mining regions 
of the world, the following table has been prepared, dating also 
from 1851 but terminating with 1913, and so avoiding the high 
figures of war times. This makes a more nearly correct exhibit 
both in general and in detail, though, as just stated, no figures 
based on values instead of quantities can be regarded as accurate, 
as will now be made clear. 

The peak of gold production in this field was reached in 1903, 
when the output had a value of $87,462,252. Since then there 
has been a steady decline of more than 50%, which may be con- 
sidered very serious in view of the loss of purchasing power of 
the metal during the last twenty years. 

Tin production was at its best in 1906, when the product 
(mainly from Tasmania) sold for $5,781,944. This figure has 
not since been equalled, though the price of the metal has ad- 
vanced from $600 per ton in that year to $880 in 1916. 

In the item of copper the value of the product of 1916 exceeded 
that of the best previous year by only $2,353,872. But mean- 
time the price of the metal had advanced from 20 cents per 
pound to 30 cents, corresponding to a decrease in the quantity 
at the last date as compared with the amount recovered during 
the best year. 

In 1892 the silver product of Australasia had a value of $17,- 
375,677, and the average price of the year was 80 cents per fine 
ounce. In 1906 the lead output sold for $11,629,135 on the 
basis of a price of $112, per short ton for the metal. The peak 
of zinc production was reached in 1909 when the output yielded 



BRITISH AUSTRALASIAN MINING LAW 



155 



$30,367,038, the average price for the year having been $110 
per short ton. These figures of output have not since been 
equalled, though meantime in each case except silver the market 
value of the metal had greatly increased, prices in 1916 having 
been 63 cents per ounce for silver, $136 per short ton for lead 
and $200 per short ton for zinc. 

It is clear therefore that the mining industry in Australasia 
is not in as flourishing a condition as might be expected from the 
known mineral resources of that part of the world, and this 
unfortunate state of affairs may perhaps be fairly ascribed to the 
nature of the laws under which it is compelled to operate. 



Australasia, 1851 to 1913 (inclusive): New South 
Australia, Tasmania, Victoria 



Wales, New Zealand, Queensland, South 
and West Australia 



Metal 


Term 


Years 

in 
term 


Total product 
of term 


Average 
annual 
product dur- 
ing term 


Product of 
1913 


Gain ( + ) 
or loss ( — ) 
in 1913 as 
compared 

with 
average 


Gold 


1851 to 1913 


63 


$3,076,222,339 


$48,828,926 


$52,781,525 


+ 8% 


Tin 


1872 to 1913 


42 


136,820,740 


3,257,636 


4,749,759 


+ 46% 


Copper. . . . 


1879 to 1913 


35 


243,013,438 


6,943,241 


15,925,199 


+ 129% 


Silver 


1880 to 1913 


34 


257,961,441 


7,587,101 


10,898,115 


+ 44% 


Lead 


1885 to 1913 


29 


189,578,551 


6,537,191 


11,152,240 


+ 70% 


Zinc 


1904 to 1913 


10 


151,854,020 


15,185,402 


23,559,424 


+ 55% 








$4,055,450,529 


$88,339,497 


$119,066,262 


+ 35% 



CHAPTER IX 

The Canadian System of Mining Law. Digest of the 
Mining Laws of British Columbia, Alberta, New 
Brunswick, Newfoundland, Nova Scotia, North- 
west Territory, Manitoba, Ontario, Quebec, 
Saskatchewan and Yukon Territory. Re- 
sults of the System. Statistics of 
Production from 1858 to 1916 

THE CANADIAN SYSTEM 

The mining laws of the various provinces of the Dominion 
of Canada, and of the Crown Colony of Newfoundland, are all 
constructed on the basis of what may be called the modern 
British theory of the business of mining; and while differing 
much in detail, have a strong family resemblance, and may 
properly be considered together. This underlying doctrine is to 
the effect that mining, being an occupation which, by its very 
nature, calls for the investment of more or less capital in develop- 
ment and equipment, the laws regulating it should be so drawn 
as to give capital all the opportunity it could fairly ask for. 
But while doing so the rights of the State as a whole must also 
be properly guarded, to prevent the development of conditions 
as to property of this kind which exist in the old country, and 
which in all parts of the Empire are regarded as unfortunate, 
and inimical to progress in the industry. 

The provinces of British Columbia, Ontario, Quebec, New 
Brunswick and Nova Scotia, and the Crown colony of Newfound- 
land have each its own mining code, while what is known as 
the Dominion code governs operations in Manitoba, Saskatche- 
wan, Alberta, the Northwest Territory, and the Yukon Territory. 

156 



CANADIAN SYSTEM OF MINING LAW 157 

In all of these the paramount ownership of the state in metalli- 
ferous minerals existing on the public domain, and also on 
privately owned land except where the mineral rights have ex- 
pressly passed in the deed of grant, and except on tracts alienated 
prior to certain dates, is definitely asserted. In British Colum- 
bia, Ontario, Quebec, and Newfoundland patents (called Crown 
Grants) may be secured, but in Quebec the right is retained by the 
government to insist upon annual labor on all such grants, 
and in Ontario the ownership of the timber is reserved. Else- 
where, only leaseholds are obtainable, so that it is hoped and 
believed that the rise and growth of large landed estates 
containing undiscovered mineral resources will be prevented 
throughout British America, except in British Columbia and 
Newfoundland. 

Presumably, with the intent to encourage discovery, all the 
codes except that of the Dominion provide regulations for that 
line of activity called prospecting, while in the case of the Domin- 
ion the same end has been sought by relieving the prospector 
from most of the obligations that are imposed upon him in the 
other provinces. But when some of these laws are critically 
examined it becomes clear that the framers of them have assumed, 
in accordance with the British doctrine, that prospecting was a 
business which, like mining, required the backing of capital, 
and accordingly the occupation is governed — excepting in the 
Dominion code — by rules and regulations which practically 
bar the prospector (as the character is known in America) from 
the field. Thus, in Newfoundland, one may freely search and 
dig, but may not locate a claim, or take away and sell anything 
found, until a prospecting license has been purchased; while 
in Nova Scotia, a claim may be located without a license, but 
digging or the removal of anything found is strictly prohibited 
until one is secured. In Ontario, Quebec, and British Columbia 
licenses are required before either digging or claim-staking can 
be done, and heavy penalties are provided for violating this 
rule. As licenses in these provinces cost all the way from $5.00 
to $10, are good for one year only, and permit of the location of 



158 INTERNATIONAL MINING LAW 

but one claim in Newfoundland, Nova Scotia, and New Bruns- 
wick, three in Ontario and five in Quebec, it is evident that the 
belief was held by most of the lawmakers that prospectors are 
people of some means, or else are in the habit of securing the 
backing of capital before engaging in exploration. In fact it is 
impossible to study the provisions of these laws (except in the 
case of the Dominion) without reaching the conclusion that 
they have been drawn and enacted with only a partial knowledge 
of the exigencies of that most important part of the mining 
industry which has to do with the discovery of new ore deposits. 
Perhaps the best example of this misconception is to be found 
in those sections of the Nova Scotia code which are supposed to 
provide for the rights and necessities of the individual who is 
moved to go out into the hills and search for gold in the beds of 
streams or in the bars along their courses. It will be unnecessary 
and even dangerous for such a party to carry with him any 
tools, for while he may freely look over the country, even where 
the surface rights have been alienated, he dares not dig until 
he has taken out a prospecting license, and he cannot take out 
this until he is prepared to describe with accuracy — as to metes 
and bounds — the area upon which he wishes to dig, for the license 
calls for full details on this point, is good for three months only, 
and costs $4.00. Consequently no time must be lost or mistakes 
made. But if under these rather discouraging conditions he 
does decide upon staking out a piece of ground that appears to 
contain pay gravel within its limits, and has taken, we will 
suppose, the minimum sized claim of 40 acres, it is interesting 
to note the responsibilities he has assumed. Before sticking 
a pick into the ground he must pay for the license at the rate 
of 10 cents per acre for the 90-days' privilege. Having done 
this he may go to work, and at the end of the term, if he has 
found enough encouragement to incline him to continue, he 
must first pay the royalty of 2% on the gross value of all gold 
so far recovered, and then $250 in cash, whereupon he will be 
granted a document called a " prospecting license'' which gives 
him the right to operate his claim for the succeeding 12 



CANADIAN SYSTEM OF MINING LAW 159 

months, in consideration of a further cash payment of $160, 
being 50 cents per unit area of one-eighth of an acre on his 
10-acre tract. 

In New Brunswick the provisions of the law seem equally 
severe. There, however, the prospector is allowed to stake off 
his claim before applying for a license, but prohibited from doing 
any digging upon it until the license is issued. But at this 
point he must be very careful, for there are two varieties of this 
document. One is entitled a "License to Prospect" but is good 
only for gold and silver. The other is called a "License to 
Search" and covers all the other metals. Not having been 
allowed so far to do any digging, and so not knowing just what 
he will find when he does get to work, he probably must take 
out both, to cover all contingencies. But neither of these gives 
him the right to remove and sell anything of value that might 
be found in case he takes the desperate chances and begins 
digging. For this privilege he must apply for still another 
document, called a "License to Work." If the prospector has 
located the maximum sized claim of 123^ acres, his license to 
prospect will have cost him $27.50 and is good for 12 months. 
The license to search costs $20, is good for 18 months and enlarges 
his area of activity to a tract five miles square, but gives him no 
exclusive rights therein, and must be surveyed at his expense 
before any exploring work is done. The license to work costs 
$50, is good for two years and carries the right of one year's 
extension at a further fee of $25. It covers any area desired up 
to 640 acres, to be selected out of the five mile tract, with pref- 
erence rights in making the selection. 

Under the law in Quebec, where the prospecting license costs 
$10 and is good for 12 months only, if any ore is found no right is 
conferred to remove and realize upon it, and a penalty of $200 
follows a violation of this rule. Thus the prospector is wholly 
prevented from making his work pay even in part as it goes along. 
However, by taking out a second permit called a " Mining License," 
at a cost of $10, and paying down in cash, in advance, the rental 
of 50 cents per acre on his claim, he can sell or treat his ore. 



160 INTERNATIONAL MINING LAW 

As the minimum size of claim in this province is forty acres, the 
right to realize, after making a discovery, costs $30. 

These examples illustrate — perhaps in an extreme way — a 
conception of the nature of the business of prospecting which it 
will be hard for the American miner to comprehend, until he 
grasps the idea that the Canadian prospector is assumed to be 
an individual in the employ of a corporation. For such the 
laws are excellent. The prospecting areas to be had are abun- 
dantly large, the times allowed for exploration are ample, and the 
fees and charges very moderate, in fact almost negligible from 
their point of view. 

In the matter of the steps that must be taken in the acts of loca- 
tion and recording, and the requirements to maintain title during 
the period usually devoted by a discoverer of a new ore deposit to 
making such explorations as are necessary to enable him to 
decide whether or not his find is going to be worth keeping, the 
provisions of the Canadian laws are liberal, but very expensive 
from the point of view of the wandering prospector, and indicate 
again that they were prepared mainly for the use of the class 
who have money to invest, instead of for those who can put only 
their time and labor into the business. Extralateral rights are 
now nowhere allowed, although they were in British Columbia, 
under its first law — now repealed — and so this means of confer- 
ring more or less of a selling value upon an undeveloped dis- 
covery or prospect does not exist. There is therefore little 
incentive to individual prospecting through out the whole of 
British North America, and new discoveries during the last 20 
years have been almost entirely *the result of accident, as in the 
case of the nickel-copper deposits of Sudbury, the silver lodes of 
Cobalt, and the gold veins of Porcupine. 

The mining industry in Canada is nevertheless already of 
great importance. The vast area of primitive rock that encir- 
cles Hudson Bay and extends northwest to the Arctic presents 
a wonderful field for exploration, and contains undoubtedly a 
great number and variety of metalliferous deposits awaiting 
discovery and development. The severe climate will not pre- 



CANADIAN SYSTEM OF MINING LAW 161 

vent this if the mining laws are of such a nature as fco attract the 
individual pioneer prospector. The experiences of British 
Columbia and the Klondyke indicate what may be expected in 
the future under like conditions; and the experiences there since 
the laws were changed, and in the other provinces where the 
incentive to prospecting has never existed, indicate what may 
be expected in the future. Outside of British Columbia the 
history of discovery in Canada has been spasmodic rather than 
steady. 

The Dominion code, covering as it does such a very large area 
of totally unexplored country, and allowing free prospecting, 
would attract the individual explorer strongly if he could secure 
a fee simple title as in British Columbia, Ontario, Quebec, and 
Newfoundland, and still more powerfully if extralateral rights 
were accorded to lode claims. Without these, the development 
promises to be much slower than that of Alaska, where the 
climatic conditions are more severe, the topography more rugged, 
and the available area of primitive rocks very much less. 

The Ontario code fails to attract prospectors because of the 
expensive license coupled with its limited location privileges, in 
spite of the great lure of a fee simple title. 

In British Columbia the attempt has been made to balance 
the abolition of the extralateral right, as an incentive to discovery, 
by the enlargement of the lode claim area to a square of 1500 
feet, but the initial cost of the license, even when labeled a "Free 
Miner's Certificate," has barred out the cashless pioneer. The 
other provisions of the law are excellent. 

In the rest of the political units of British America the laws 
put such heavy burdens on pioneer mineral explorers that the 
regions have been practically abandoned by them, and what 
remains of the public domain is rapidly passing under private 
ownership for agriculture, grazing, forestry, coal and iron mining 
and other purposes, as have the lands of Europe, where vast 
mineral wealth yet remains undiscovered because of the unattrac- 
tive features inevitably connected with prospecting over land 
already individually owned. 



162 INTERNATIONAL MINING LAW 

BRITISH COLUMBIA 

(Law of 1897, with amendments to January 1st, 1917) 

This Province of the Dominion of Canada holds, for the 
benefit of its citizens as a political entity, and offers for disposal, 
under the terms of its mining law, any and all mineral deposits 
of all kind except coal, that can be found on, in, or under its 
remaining public domain; also any (except coal) that may be 
found under the surface of such formerly owned parcels of the 
same where the mineral rights have been reserved when surface 
rights were granted. For all these, under proper procedure, 
it will issue Crown Grant (fee simple title) if desired. 

Any individual over 18 years of age, who desires to prospect for 
mineral deposits, surface or underground, must first take out a 
document called a "Free Miner's Certificate," also any company 
organized and incorporated for mining purposes. The cost of 
this certificate for an individual is $5, for a company with a 
capital not in excess of $100,000, $50; for a company with a 
capital in excess of $100,000, $100. It is obtainable from any 
Gold Commissioner or Mining Recorder. It is good for 12 
months, and is renewable annually at the same cost. The 
possession of it gives the right to prospect, locate claims, and 
carry on mining operations. Any number of claims may be 
acquired by those who hold one, except that only one may be 
located on the same vein, or in the same valley in the case of an 
alluvial location. 

When an alluvial claim is located no under surface or rock 
mining rights are created, and if the location is on a vein or 
ore deposit, no placering rights go with it. Finally, the certifi- 
cate includes an individual game license. 

For alluvial or placer mining the claim, when laid out in 
the bed of a creek is 1000 ft. wide and 250 ft. long, in the direc- 
tion of the creek. If on a bar or bench, it is 250 ft. square. But 
the first discoverer of a new placer creek is allowed to take up an 
additional claim along the creek which can be 600 ft. long by 
1000 ft. wide. For underground operations, or what is known 



CANADIAN SYSTEM OF MINING LAW 163 

generally as a quartz claim, the dimensions are 1500 ft. by 1500 
ft. No extralateral rights go with any of these claims. 

The location acts required are simple, inexpensive, and effec- 
tive. Discovery of metal or mineral is a necessary preliminary 
to a valid location of any kind, and all locations must be laid 
out as nearly rectangular as possible. 

Recording is required within 15 days of date placed on dis- 
covery stake, if location is within 15 miles of the Recorder's 
office. An extra day is allowed for each additional 10 miles of 
distance, or fraction thereof. The recording acts are simple, 
but require the personal presence of the claimant at the Re- 
corder's office. The" fee is $2.50. After record is made, 
conveyancings acts of all kinds are absolute. 

Maintenance requirements. In the case of placer claims the 
"Free Miner's Certificate" must be renewed annually, but the 
cost of doing so is reduced to $2.50. Also, at the same time the 
claim must be again recorded. During the working season 
the claimant must prosecute continuous work, or put a man in 
his place. A total of 72 hours of cessation is allowed, or nine 
days of eight hours each. The beginning and end of the work- 
ing season are determined and publicly announced by the Gold 
Commissioner of the district. For quartz claims the "certifi- 
cate" must be renewed annually at a cost of $5, and during the 
year labor to the value of $100 must be performed and affidavit 
of same made and recorded. The recording fee is $2.50. Or, 
in lieu of labor, $100 in cash may be paid in to the Recorder. 
Also, during the first year of possession, the claim must be sur- 
veyed by the provincial surveyor, at claimant's cost. But this 
expense, up to the value of $100, is allowed on annual labor 
account. 

No royalties of any kind are required. 

Crown Grants. These documents, which are the equivalent 
of a U. S. Patent, and convey a fee simple title, are not given 
on placer claims, but a Lease for any period up to 20 years may 
be obtained for the latter by arrangement with the district Gold 



164 INTERNATIONAL MINING LAW 

Commissioner, on terms approved by the Lieutenant Governor 
in Council; also for water rights. 

For quartz claims, after holding the same for five years, and 
completing five annual labor requirements (or making five cash 
payments), together with affidavits and records of the same, 
the claimant is entitled to apply for a " Certificate of Improve- 
ment," which, if granted, relieves him of all further annual 
labor requirements, and places him in a position where he can 
make application for Crown Grant. During this five year 
period the title to a quartz claim is regarded as an annual lease, 
renewable indefinitely, upon compliance with requirements 
as stated. There is no obligation to apply for Crown Grant. 

The procedures for securing Crown Grant are simple and 
inexpensive. The fee upon issuance of same is $25 for under- 
ground rights and $10 for surface rights, making a total of $35 
for a tract 1500 ft. square, containing, roughly, 50 acres. 

DOMINION OF CANADA 

(Law of 1913, with amendments to January 1st, 1917) 

The provisions of the Dominion Mining Law cover only the 
Provinces of Manitoba, Saskatchewan, Alberta, the Northwest 
Territory and the Yukon Territory. Within these limits the 
Government asserts its paramount ownership of all mineral 
deposits of all kinds on the public domain, otherwise known as 
Crown Land; and will not sell the same. Instead, it grants 
annual leases for specified areas. These are of two kinds, namely, 
for quartz or underground mining, and for surface or placer 
mining. 

Prospecting is free to all individuals over 18 years of age, 
subjects or aliens, male or female. No license is required. Dis- 
covery of metal or mineral is necessary before planting stakes. 
Location acts are simple, inexpensive, and effective. An un- 
limited number of claims may be located, but only one on a 
stream, or on the same vein. But the discoverer of a new placer 
creek is entitled to three extra claims. 



CANADIAN SYSTEM OF MINING LAW 165 

Recording must be effected within 10 days of date of planting 
discovery stake in the case of placer claims, and within 15 days 
in the case of quartz claims, provided, in each case, the claim is 
within 10 miles of the Recorder's office. An extra day is allowed 
for each additional 10 miles of distance, or fraction thereof. 
Recording fee is $5, on payment of which a certificate is issued 
good for 12 months, conveying exclusive mining rights and 
privileges, conditioned upon the performance during the year 
of $100 worth of labor on the claim, and the recording of an 
affidavit evidencing the same. This certificate is renewable from 
year to year indefinitely, on the same terms. 

For underground operations, the claim area is 1500 feet square; 
for surface operations, 500 feet in the valley or alongside of a 
stream, and 1000 feet wide. All claims must be laid out as 
nearly rectangular as possible, and orientated. There are 
no extralateral rights, and no royalties of any kind. 

Conveyancing rights are complete after recording. 

NEW BRUNSWICK 

(Law of 1903, with amendments to January 1st, 1917) 

Metals and minerals of all kinds, on both public and private 
lands, are the property of the State, and are obtainable for 
mining purposes by individuals or corporations only under 
leasehold title. When they are discovered or suspected on 
areas the surface rights of which have been alienated, the miner 
or prospector who desires to explore and excavate must not only 
apply to the Government for such rights, but must come to an 
understanding with the surface owner. If the latter is unreason- 
able in his demands, the law provides a procedure by which, at 
some little expense, he may be compelled to grant fair terms. 

Prospecting, if by that is meant merely looking over apparently 
unoccupied or unused areas of the country for outcrops or promis- 
ing indications of the presence of valuable minerals, either alluvial 
or underground, is free. But no excavating work of any kind 
is permitted without first taking out a license. However, the 



166 INTERNATIONAL MINING LAW 

law specifically provides that if the prospector finds " indications" 
on what seems to be unoccupied land, he may stake off a tract 
of a certain size, and in a certain way hereinafter described. 
Then, within a week, plus 24 hours additional for each 15 miles of 
distance between the tract and the office of the Surveyor General 
at Fredericton, the capital of the Province, he must appear before 
that official, and apply for a " License to Prospect," which docu- 
ment, when obtained, gives him the right to dig and explore. 
There are, however, several kinds of licenses. The one just 
mentioned gives him the right for gold and silver only. Another, 
called a " License to Search," covers all other metals and minerals. 
Neither permits him to remove and sell anything found. For 
that it is necessary to obtain another kind, called a " License to 
Work." 

The unit area for mining property of all kinds is a tract of 
land rectangular in shape, magnetically orientated, and measur- 
ing 150 feet on an east and west line, and 250 feet on a north and 
south line. Any number of these between 10 and 100, assembled 
in a compact block, whose length does not exceed twice its 
breadth, may be applied for as a prospecting tract, and, if not 
lying within the limits of an already proclaimed mining field, will 
probably be allowed. 

The "License to Prospect" is good for any period up to 12 
months, at the discretion of the Surveyor General. It costs, 
for the first 10 units of its area, 50 cents per unit; for any further 
number up to 100, 25 cents per unit. Thus a tract containing 
24 units, which would correspond closely to the American mining 
claim of approximately 20 acres, would cost $8.50. Any desired 
number of such areas may be applied for under one license, and 
the prospector's title to the same holds good during the life of 
his license, which latter may be renewed once, for not over 12 
months at a cost half of that paid for the first term. 

The "License to Search" is good for 18 months. It covers all 
metals and minerals except gold and silver when occurring by 
themselves, but includes them when they are associated with 
other metals. The maximum area allowed under this, form of 



CANADIAN SYSTEM OF MINING LAW 107 

permit is five square miles, which must be laid out in a correctly 
orientated rectangular block, not over 2 Y /i miles in length. The 
cost, on application, is $20. It must be surveyed at the expense 
of the applicant, and full reports from time to time made to the 
Surveyor General, giving details of progress of exploratory work. 
This permit, however, does not convey an exclusive right to the 
area so laid out. Other similar licenses may be granted for the 
same ground. But the first licensee has priority of right in mak- 
ing final selection from the tract. The selection may be made at 
any time during the term of the permit, and may consist of any 
part of the tract not to exceed one square mile in area. But it 
must be of rectangular shape, orientated magnetically, and not 
over 2}^ miles in length. At the time of selection the applicant 
must apply for a "License to Work," accompanying the applica- 
tion with a survey of the selected tract, and a fee of $50. 

The " License to Work" is good for two years, with privilege 
of one year's extension at half the cost of the first term. Within 
this three years genuine mining must begin, and must be continu- 
ously prosecuted thereafter. A " License to Work" may be 
applied for without previously taking out a "License to Search." 
Any holder of a "License to Work," is entitled, at any time during 
its period, to call for a Lease. 

In licenses of all three kinds, if any part of the selected areas 
is on privately owned land, the applicant must make arrange- 
ments with owner of same for surface rights, must give bond 
to indemnify him for possible damages, and to the government 
that the required reports will be made, and the royalties paid 
when due. 

Leaseholds. Any number of contiguous unit areas that make 
up a rectangular block with sides magnetically orientated, may 
be applied for as a leasehold for mining purposes. The applica- 
tion must be accompanied by a deposit of $2.00 per unit area, 
which is credited as the rental for the first year. Thereafter 
the lease is renewable from year to year at a cost of 50 cents per 
unit area, payable in advance. 

All leases are made out for a term of 20 years, but may be 

12 



168 INTERNATIONAL MINING LAW 

surrendered at any time. They also may be declared forfeited 
at any time in the event of default in payment of rental or royalty, 
or of the fulfillment of the annual labor requirement. 

The number of days of labor required, per annum, to maintain 
the validity of the lease, is determined in each case by the 
Lieutenant Governor in Council, and is wholly a matter of his 
discretion. 

Leases may be renewed at the option of the Government at the 
end of the 20-year term, for a second period of equal length. 
Also for a third and fourth period, but for no longer, under any 
circumstances. 

On all leases quarterly reports are required, giving the number 
of days of labor employed during that term, the tons of ore raised, 
the party or parties to whom the same were sold, with details 
of each parcel, the tons of ore milled and yield of same in metal, 
and the total value of the products of all kinds. 
Royalties. 

On gold and silver, 2 J^ % of the gross value recovered. 

On copper, 4 cents per unit (1%) per ton of 2352 lbs. 

On lead, 2 cents per unit, per ton of 2240 lbs. 

On tin and gemstones, 5 % of the gross selling value. 

On other metals and minerals, as may be determined by the 
Surveyor General and the Lieutenant Governor-in-Council. 

NEWFOUNDLAND 

(Law of 1903, with amendments to January 1st, 1917) 

Mineral deposits of all kinds, whether occurring in public or 
private lands, are the property of the State. 

Prospecting is free, without preliminary license. The pros- 
pector may make any diggings or excavations necessary to find 
or expose mineral (except on land already covered by buildings 
or growing crops), but may take away samples for assay only. 

Such operations do not confer any exclusive right to prospect 
over any defined area, or lay the foundation of any right. But 
as soon as a discovery stake is erected, upon which the name of 



1 



CANADIAN SYSTEM OF MINING LAW 169 

the discoverer and the date of discovery is inscribed, the pros- 
pector acquires the preferential right to apply to the Minister of 
Mines for a license to locate a claim. 

This application must be made within two months of the date 
inscribed on the discovery stake; otherwise the right lapses, and 
the ground may be applied for by another. 

The fee, with application, is $10.00. 

This license permits the holder to locate one claim, and to 
enjoy the exclusive right to explore underground, within its boun- 
dary lines, for 12 months. The maximum size of the claim is 2640 
ft. by 5280 ft., equal to 320 acres. Its shape must be that of a 
parallelogram. Its possession conveys no surface rights what- 
ever, no extralateral underground rights, and no rights to remove 
and realize upon ore found. 

At any time within this 12 months the holder can call for a 
99-year lease, at a rental of $20 for the first year, $30 each for the 
next five years, $50 each for the next five years, and $100 each for 
the remaining years of the term. At any time during the period 
of the lease it is forfeited automatically by failure to pay the 
rental when due. Also, at any rental-payment date the Govern- 
ment will accept in full satisfaction for unmatured rental a sum 
equivalent to its value at the time, on the basis of 3% interest 
per annum. The lease conveys mining rights to all minerals 
found vertically under the surface within boundary lines. 

To obtain necessary surface rights for mining purposes, the 
claimholder may select a tract of any shape, and of any size up to 
50 acres, within the lines of his claim, provided the same is not 
already in use; and upon marking its boundaries, and delivering 
diagram of same to the Minister of Mines, he acquires the use of 
the area for mining purposes, during the life of his lease. 

Annual rental on leasehold premises is payable in advance. 

Fee simple title is granted to any lessee, on a location not 
exceeding 320 acres, who shows that during the first five years 
of his occupancy he has expended not less than $6000 for surface 
or subterranean (or both) bona fide mining work, by which not 
less than 10,000 cubic yards of rock have been excavated. 



170 INTERNATIONAL MINING LAW 

All mining property remains in perpetuity open at all reason- 
able hours and times to duly authorized government officials, 
or their representatives, and all mine operators must keep books 
of account, which also must be held open for official inspection. 

No royalties of any kind are required. 

NOVA SCOTIA 

(Law of 1911, with amendments to January 1st, 1917) 

Prospecting, when confined simply to looking around, is free 
on all public and private lands not already occupied or in use, 
so long as no digging is attempted. During such preliminary 
inspections, if any promising indications are found, a claim may 
be staked and a discovery post erected, upon which the name of 
the discoverer and the date of the discovery should be inscribed. 
If within 15 miles of the office of the nearest Mining Commis- 
sioner, application for digging license must be made within seven 
days. An additional day of 24 hours is allowed for each addi- 
tional 15 miles of distance or fraction thereof. 

Digging Licenses are of three kinds, viz., " Alluvial License," 
covering only surface gravel deposits, such as are commonly 
known as placers; " Prospecting License," covering only veins 
or deposits of gold or silver — or both — in rock in place; and 
" License to Search," covering all other metals or minerals in 
rock, except coal. Applications for any one of these must be 
made in person and in writing on a specified blank, and must 
describe the area desired and the metal or metals or minerals ex- 
pected to be found. If a license is granted, a survey at the cost 
of the applicant may be required. If the area is on alienated land 
a suitable bond must be given to reimburse the owner for possible 
damages. All licensees must keep books of account, and may 
be called upon at any time to exhibit them. All licenses in 
good order may be transformed at any time into leases, at the 
option of the licensee, upon compliance with the requirements 
or may at will be abandoned. 

The unit area is a rectangle measuring 250 ft. and 150 ft. 



CANADIAN SYSTEM OF MINING LAW 171 

on its sides, and containing therefore about eight-tenths of an 
acre. All areas for prospecting or mining purposes must be 
multiples of this unit, compacted into one block. 

The Alluvial License is good for three months, and can be ob- 
tained only between March 31st and December 1st. With it a 
claim containing up to 500 unit areas may be filed. The filing 
fee is 10 cents per unit area, and to maintain possession the 
claimant must perform 40 cents' worth of labor per unit during 
the three months' term. At its end, if the licensee reports 
correctly all metal or ore recovered, and pays the proper royalty, 
then, in consideration of a fee of $250, a license good for an 
additional term of 12 months will be granted. 

The " Prospecting License" is good for 12 months and must 
cover not less than six units of area, nor more than 100 of them. 
Its cost is 50 cents per unit per annum. 

The " License to Search' - ' is good for 18 months, and with it 
an area up to five square miles may be located. Its cost, payable 
on application, is $30. 

All these preliminary licensed areas may be converted at the 
option of the claimant at any time into leaseholds. Until that 
is done (except in the case of alluvial claims) no ore selling rights 
exist. Leasehold areas are of two kinds, as follows: 

For gold and silver quartz mining. The size is unlimited, 
but must not be for less than six unit areas adjoining. The 
application fee is $2 per unit. The maximum term allowable 
is 40 years. The rental is 50 cents per unit area per year paya- 
ble in advance. The labor requirements are as follows: if 
the area contains less than 10 units, 40 shifts of work per unit 
per annum; if it contains from 10 to 19 units, 30 shifts per unit 
per annum; if it contains 20 to 29 units, 20 shifts per unit per 
annum; and if it contains 30 units or more, then 10 shifts per 
unit per annum. A royalty of 2% of the gross value of the gold 
and silver recovered is also exacted. This form of leasehold is 
assignable only with the consent of the Governor in Council. 

For all other metals or minerals. The maximum area allowa- 
ble for copper or lead mining is 320 acres; for all other metals 



172 INTERNATIONAL MINING LAW 

160 acres. The fee on application is $50. The maximum term 
is 20 years, but this is renewable three times at the option and 
on the terms of the Governor in Council, making possible a 
total term of 80 years. The annual rental is $30, after the first 
year, payable in advance. Royalties are as follows: on copper, 
four cents per unit (1%) per ton of ore at mine weights; on lead, 
two cents per unit; on tin, 5 % of the gross value in the ore. This 
lease, like the other, is assignable only with the consent of the 
Governor in Council. The Lessee is required to monument 
all his corners within six months of date of lease, under a penalty 
of $100 per monument in default, and maintain the same in 
good order during term of lease. 

ONTARIO 

(Law of 1908, with amendments to April 27th, 1917) 

The Government offers the fee simple title for mining pur- 
poses, of the surface and underground on all public lands, and 
on all private land alienated since May 6th, 1913, except certain 
reserved tracts mentioned in Sees. 34-43 of the Mining Law, 
and also certain forest areas referred to in Sees. 44-47 of the same. 
On the last mentioned, leases may be obtained. 

For exploration, and development purposes it issues licenses. 
No person is allowed to prospect or mine on lands subject to the 
provisions of the mining law, unless 18 years or over in age, and 
in possession of one of these documents. 

A mining license is obtainable from the Bureau of Mines in 
Toronto, or from any mining recorder. It costs $5, and is valid 
up to March 31st after its issuance date. May be renewed 
annually at the same cost. Gives the right to locate up to three 
full claims per annum, in any one or more of the mining districts 
or Divisions of the Province. 

The mining claim may be of any size desired up to 40 acres. 
If on surveyed land it must conform to the legal subdivisions. 
If not, it must be as nearly square, and its boundary lines 
orientated as correctly as possible under the circumstances. 



CANADIAN SYSTEM OF MINING LAW 173 

In certain special districts no claim exceeding 20 acres is allowed. 
No extralateral rights exist. Discovery of mineral before 
staking is required. Location acts are simple and effective. 
Survey may be required. 

Record must be made within 15 days of the date on the dis- 
covery stake, if not over 10 miles from Recorder's office. An 
extra day is allowed for each additional 10 miles of distance. 
The record must be endorsed on the mining license. The fee is 
$10. 

During the 60 days following record the claimant remains 
simply a " licensee of the Crown." But if, by the end of that 
term his claim, on due examination by the district Inspector, 
has been approved as "in order," and no adverse claim has been 
filed, he may demand a "Certificate of Record," and should do 
so, or the title remains questionable. This document costs $1.00. 

During the three months succeeding the issuance of the Certi- 
ficate of Record, 30 shifts of labor, of eight hours each, are required ; 
during each of the first and second 12 months following the end 
of this three-months' period, 60 shifts of eight hours each; during 
the third 12 months, 90 shifts of eight hours each. 

Affidavit of same must be filed for record in each case, 
within 10 days of the completion of the work. If the claimant 
has adjoining claims, this work may all be performed on any one 
of them. 

On completion of these labor requirements, if after due exami- 
nation they are approved by the district inspector, a document 
called a "Certificate of Performance" will be granted, upon 
payment of $1.00. 

Transfers of title of unpatented claims are allowed at any stage 
of the process of making title, provided the same are recorded. 

If the claim is on alienated land, the claimant must arrange 
with the owner for such surface rights as he may need. If the 
demands of the owner are considered excessive, he can be com- 
pelled, at some cost, to agree to reasonable terms. 

After completing the three years and three months of labor 
as above specified, and within the nine months immediately 



174 INTERNATIONAL MINING LAW 

following, application for patient must begin. If not, a fourth 
year of labor — on the terms of the third — must be performed 
before application can be made. The proceedings consist of a 
tender of the price of the land, which is $3 per acre if within 
surveyed territory, or $2.50 per acre if not; if on land whose 
surface rights have been alienated, or if for a placer claim, the 
price is half of these figures; if on unsurveyed land, the claim 
must be surveyed by a Government surveyor, at the cost of the 
claimant. The patent conveys all Crown title in fee simple, 
except the right to cut and use the pine timber within its 
boundary lines. But it involves the obligation on the part of the 
claimant to make annual reports on output (in weights and 
values), and to furnish employment statistics; and such reports 
may be called for monthly, by the Bureau of Mines, at its option. 

Placer claims are acquired, maintained, and patented under 
identical conditions, and are of the same size. 

Prospecting Areas. If for any reason a holder of a mining 
license desires to prospect an area thoroughly before setting dis- 
covery stakes, he can secure the exclusive right to do so for a 
strip of ground 50 feet wide and 150 feet long, by erecting two 
stakes called prospecting " pickets" at the center of the extremities 
of said strip, and by conforming to several other simple require- 
ments. Thereafter, "so long as he is diligently and continuously 
prospecting" on the said strip, he is entitled to "the exclusive 
right to prospect, and to make a discovery thereon." 

QUEBEC 

(Law of 1913, with amendments to date of January 1st, 1917) 

The Quebec mining law is based on the doctrine that mining 
rights "constitute a property under the soil, separate and 
distinct from that of the soil that is above it." It announces that 
the government, for the benefit of the Province as a political 
entity, retains the title to all such rights in the case of gold and 
silver, even on privately owned land, and in the case of all other 
metals and minerals, except on tracts alienated prior to July 
24th, 1880, and excepting in the case of mining grants already 



CANADIAN SYSTEM OF MINING LAW 17;") 

made. It therefore offers to sell or lease mining rights to first 
bona fide applicants, to be used, however, solely for mining pur- 
poses and operations legitimately connected therewith, and 
under the provisions of the law. To such purchasers or lessees 
full conveyancing rights pass. 

A prospecting license is required. The cost is $10. It is 
good until the 1st of January following date of issuance, and is 
renewable annually indefinitely, at the same price. Under it 
five claims per year may be located. Discovery and corner 
stakes are required, and blazed lines from discovery to corner 1 
and thence around the claim. The nearest office of the Depart- 
ment of Mines must be notified of the location " without delay," 
so that details of the same may be registered there and endorsed 
on the license. Within six months from discovery date the 
claimant must perform 25 days (of eight hours each) of labor on 
the claim, and apply for a mining license, or the claim is con- 
sidered forfeited. Until the mining license is obtained no metal 
or mineral may be taken from the claim except in the way of 
assay samples, under a penalty of $200 and costs. 

The unit claim is a rectangle, containing anywhere from 40 to 
200 acres, at the option of the locator. 

The mining license costs $10 per year, plus 50 cents per acre 
per year, and is payable in advance. During this period the 
claimant must perform 25 days (of eight hours each) of labor per 
40 acres or fraction thereof, must have the claim surveyed if on 
unsurveyed public land or on private land, and in the latter case 
consent of the surface owner must be obtained before explora- 
tions begin. If this is refused, or hard terms are demanded, 
ample means are provided in the law to compel him to be reason- 
able, although they may involve considerable expense. Operat- 
ing under a mining license is equivalent to a leasehold. The 
$10 fee and 50-cent acreage tax must be renewed annually, and 
full reports of all operations made to the Inspector of each 
district on dates of renewal, for the year just ended. 

Royalty may be charged, at the option of the Governor in 
Council, but cannot exceed 3 % on the net value of the output. 



176 INTERNATIONAL MINING LAW 

Fee simple title, covering both surface and sub-soil mining 
rights — except in the case of claims located on private land, 
when surface rights must be obtained from soil owner — can be 
secured from the Government on the following terms: 

1. In the case of claims producing gold or silver either alone 
or in connection with other metals, on payment of $20 per acre 
if within 20 miles (by nearest practicable road) of a railroad, or 
$10 per acre if over 20 miles. 

2. In the case of claims producing neither gold nor silver, but 
yielding any other metal or minerals, $4 per acre if within 20 
miles of a railroad, or $2 per acre if over 20 miles. 

Even after passing title, annual labor on the claim is required 
by the government, to the extent of $500 per 100 acres or frac- 
tion thereof in the case of claims producing gold or silver, and to 
the extent of $200 per 100 acres or fraction thereof on other claims. 
Finally, all mining claims to which leasehold or freehold title 
has been granted are subject to an annual tax of 10 cents per acre. 

RESULTS 

The production of metals began in Canada with the discovery 
of gold in British Columbia in 1858. Copper mining began in 
Newfoundland in 1872 but did not become important until 
1879. Silver production — other than that recovered from placer 
gold — dates from 1880 so far as reliable statistics indicate. Nickel 
became a factor of the output in 1889, lead in 1890 and zinc in 
1906. From the first date up to and including 1916 the statis- 
tics are as follows. 

Metal Term Totals Annual average 1916 

Gold 59 years $385,736,840 $6,504,014 $22,800,000 

Copper 38 years 201,197,812 5,294,679 31,930,515 

Silver 37 years 190,504,015 5,148,757 16,854,635 

Nickel 28 years 161,903,419 5,782,265 29,035,497 

Lead 27 years 38,627,570 1,430,651 3,850,829 

Zinc 11 years 10,122,784 920,253 6,532,768 

$988,092,440 $25,080,619 $111,004,244 



CANADIAN SYSTEM OF MINING LAW 



177 



Hence the gain in value at the end of the period in the case of 
each metal, over the average production of the term, has been, 
for gold 250%, for copper 503%, for silver 227%, for nickel 
402%, for lead 169% and for zinc 609%. These are apparently 
very remarkable results. But being based wholly on values 
instead of on quantities they are misleading, and particularly 
so in view of the fact that during the last three years of the term 
abnormally high prices have prevailed for all metals except 
gold, while at the same time the latter has lost greatly in pur- 
chasing power, probably to the extent of 50 %. 

To present the results in a more normal way, and for compari- 
son with similarly worked out figures for the other great mining 
fields of the world, the following table has been prepared, which 
terminates with the statistics of 1913, thus eliminating the effect 
of the high prices that have prevailed in the metal market since 
the opening of the European war. This still makes an excellent 
showing for the Canadian field, excepting in the case of zinc, 
which is produced only in British Columbia. 



Canada, 1858 to 1913 (inclusive): Alberta, British Columbia, Manitoba, New Brunswick, 
Newfoundland, Northwest Terr., Nova Scotia, Ontario, Quebec, Saskatchewan and 

Yukon Terr. 



Metal 


Term 


Years 

in 
term 


Total product 
of term 


Average 
annual 
product dur- 
ing term 


Product of 
1913 


Gain ( + ) 
or loss ( — ) 
in 1913 as 
compared 

with 
average 


Gold 


1858 to 1913 


56 


$328,074,825 


$5,858,479 


$16,598,923 


+ 183% 


Copper. . . . 


1879 to 1913 


35 


140,801,097 


4,022,888 


12,676,135 


+215% 


Silver 


1880 to 1913 


34 


144,463,714 


4,248,932 


19,040,924 


+ 348% 


Nickel 


1889 to 1913 


25 


115,326,547 


4,613,062 


7,076,945 


+ 53% 


Lead 


1890 to 1913 


24 


31,439,727 


1,309,989 


1,642,680 


+ 25% 


Zinc 


1906 to 1913 


8 


1,800,360 


225,045 


159,488 


- 29% 


! 1 


$761,906,270 

■ 


$20,278,395 


$57,195,095 


+ 182% 



178 INTERNATIONAL MINING LAW 

Considering the field as a whole, and disregarding all statistics 
later than those of 1913, the status for each metal may be briefly 
summarized as follows : The peak of gold production occurred in 
1889 with an output of $27,957,776, which corresponded with 
the best year at the Klondyke. Copper production steadily 
grew in value up to 1912 when the output was worth $13,519,251. 
This was also the best year for silver in the Dominion, when the 
product sold for $19,425,656. The record year for nickel was 
1910, with a crop valued at $11,181,310. The lead maximum 
was in 1906 when the output had a value of $3,054,065; and for 
zinc the date was 1912 when the metal recovered sold for $679,- 
462. None of these maxima were equalled up to the close of 
1913. 



CHAPTER X 

The South African System of Mining Law. Digest of 

the Mining Laws of the Cape Province, Natal, 

Orangia, Rhodesia, and the Transvaal. 

Results of the System. Statistics 

of Production from 1879 to 1916 

THE SOUTH AFRICAN SYSTEM 

These laws, embracing the codes of Rhodesia, the Transvaal, 
Orangia, Natal, and the Cape Province, present very strong 
family resemblances, and are markedly different from those of 
any other mining region. This had resulted first from the 
sociological conditions that have existed during the settlement 
of the country, second because of the unusual forms in which its 
mineral wealth came under the notice of the white man, and 
third, from the rapidity with which, in the last forty years, the 
culture of its inhabitants has changed from semi-civilization — 
and even barbarism — to modernity. It will be interesting as well 
as helpful to an understanding of the peculiarities of its mineral 
laws to give certain details of the land and its inhabitants. 

About 92% of its population (which in 1910 was estimated at 
8,400,000) are native blacks or colored people, including a 
small number of Asiatics, mainly Hindus. The former are the 
laborers. It is against the law to train them to perform any 
kind of work requiring discretion or initiative, although in the 
older parts of Natal and the Cape Province the infraction of this 
regulation is winked at by the authorities, and a very consider- 
able number of the pure natives have, by ability and faithfulness, 
won the confidence of employers and occupy positions of trust 
requiring knowledge and education. But they have no standing 

179 



180 INTERNATIONAL MINING LAW 

as citizens. They are allowed to do any work requiring physical 
strength or manual dexterity but debarred from all other lines 
of activity. In the mining industry, for instance, they may learn 
to use the hammer and drill, and become very expert at the work, 
but may not point, load or fire holes or operate a machine drill; 
they may fire the boilers of a power plant but may not handle the 
engine. Throughout the whole sub-continent the white man 
directs, supervises and operates machinery, and is absolutely 
debarred from common labor. If he trespasses this unwritten 
law he loses caste at once. This absolute color line has had its 
natural effect upon the mining industry, for it has made the 
business of prospecting impossible. There is not one of these 
pioneer mineral explorers in the countries under consideration. 
Consequently the discovery of new mines is a rare incident, and 
always purely a matter of accident. 

In its upland and mountainous parts where the mines are to be 
found, it is a semi-arid and — during the rainy season — an un- 
healthy land, afflicted with malaria in the valleys, sparsely tim- 
bered, provided with no navigable rivers, but crossed with innumer- 
able water courses which are raging floods during a part of the 
year, and often little more than series of stagnant pools during the 
remainder. Such a country affords meagre camping facilities and 
does not invite the wandering explorer. But during the four or 
five months of the winter few regions possess a climate more 
attractive. There is a monotony in the scenery which at first 
is depressing but later becomes restful and conducive to modera- 
tion in activity. It is an ancient land, which has been inhabited 
for many centuries by uncivilized native races who have left 
behind them traces of the rude stage of culture to which they 
attained in the way of crude rock paintings, roughly built stone 
structures, and, in certain parts, a vast number of shallow exca- 
vations along the lines of outcrop of gold bearing veins. The date 
of these prehistoric labors has not been satisfactorily determined 
and perhaps never may be as there is a total absence of all 
inscriptions upon even the most pretentious of the ruins. But 
it is fairly well agreed among archaeologists that at some period 



SOUTH AFRICAN SYSTEM OF MINING LAW 181 

of the past there was considerable commerce with Arabia and 
Egypt, and possibly with India, and much mingling of the natives 
with these foreigners. Certain parts of the interior uplands were 
certainly through many centuries the site of an extensive gold 
mining industry, the metal having been recovered from the out- 
crops of veins by the labor of slaves operating under the direction 
of the white immigrants. Much of the country during this era 
was prospected for gold and some parts of it, notably Southern 
Rhodesia, so thoroughly that but very few new deposits of that 
metal have since been found. There has also occurred a pre- 
historic search for copper, but no evidence has been found of 
ancient silver mines. 

Modern mining began with the accidental discovery of the 
outcropping gold-bearing banket beds of the Transvaal upland in 
1887, which had been overlooked by the natives. In 1892 
the Rhodesian mining districts became accessible. This proved 
to be a land already prospected. All that it was necessary for 
the pioneers to do was to give a suitable present to a native chief, 
who would then immediately order a runner or guide to take the 
white man to the nearest old workings not already given away. 

The kind of law that has been evolved from these peculiar and 
unusual conditions is very interesting and quite unique. Pros- 
pecting is not considered to be an occupation involving the 
search for undiscovered mineral deposits, but a business hav- 
ing for its object the relocation of already known outcrops 
and their preliminary development by means of comparatively 
shallow excavations to determine whether or not the lode is wide 
and rich enough to become payable. Hence it becomes simply 
claim staking, and for the exercise of the act the laws require 
the taking out of a license. These are available only to whites, 
vary in cost from one shilling in Natal to ten shillings in Orangia, 
and are good for one month only, except in Rhodesia, where the 
cost is twenty shillings and the term a year. In Natal, Rhodesia, 
and Cape Province these documents are renewable indefinitely 
at the same cost per term, and in Orangia at half the cost. But 
in the Transvaal only two renewals are permitted. Any desired 



182 INTERNATIONAL MINING LAW 

number of licenses may be taken out by an individual. The 
size of the location varies from fifteen acres in the Transvaal to 
150 acres in the Cape, being determined in each case by the size 
of the unit claim multiplied by the number of them allowed to a 
legal location. None carry extralateral rights except in Rhodesia, 
where the claimant is permitted the indefinite pursuit of the one 
vein upon which the location was made. Everywhere in this 
group of laws a discovery is a necessary prerequisite to a location. 

Exclusive prospecting areas, ranging in size from 15 to 140 
acres, and good for terms of 30 days and upwards for preliminary 
exploration purposes, may be secured in all the provinces except 
Natal upon reasonable conditions and at moderate expense. 
The document conveying such franchises is usually called a 
" prospecting permit." 

Neither permits nor licenses carry anything more than pros- 
pecting privileges, and the right to make a permanent location 
within proscribed lines and to carry on development work. 
But when the location is staked, surveyed, monumented and 
registered, and the holder desires to produce ore and realize upon 
it, he must first take out what is called a claim or working license, 
which is of the nature of a monthly tax ranging from two shillings 
to two pounds per month on each unit claim in the location from 
which ore is being taken, according to which province he is 
operating in, and whether his claim belongs to the alluvial, the 
precious metal, or the base metal class. 

There are no labor requirements in Orangia, the Cape Province, 
or Natal. In the Transvaal the mining Commissioner must be 
satisfied that reasonably energetic development operations are in 
progress or claim licenses may be imposed, whether the property 
is producing or not. In Rhodesia the alternatives are claim 
licenses, or sixty feet of development per annum per location 
(not per unit claim), or the equivalent of the latter in cash. 
Royalties are demanded on the precious metals only in Rhodesia, 
and on the base metals only in Rhodesia, Orangia, and the 
Transvaal, the rates ranging from 1% to as high as 7}^%. 

Location and registration acts and requirements are rather 



SOUTH AFRICAN SYSTEM OF MINING LAW 183 

elaborate, and in Rhodesia and the Transvaal somewhat com- 
plicated and expensive. No titles are given beyond the monthly 
leasehold, which is maintained in force by the monthly renewal 
of the Permit or License under which it was initiated, or of the 
claim license permitting commercial operation, or both, plus in 
Rhodesia and the Transvaal the annual labor requirements or 
inspection fee on idle claims. 

General mining conditions in South Africa may be summarized 
as follows: In the Cape Province, Natal, and Orangia the metallic 
output has never been important and gives little promise for the 
future. Nearly all the public domain has been alienated for 
agricultural or pastoral purposes and the inducements to search for 
mineral on privately owned tracts are slight. In the Transvaal 
the enormous gold production of the past forty years is thought to 
have reached its maximum. It will doubtless continue at high 
figures for some time yet, because promising extensions of the 
main reef have been proven up and determined to be moderately 
payable. But no prospectors are in the field, and few new occur- 
rences of either the precious or base metals are being found. In 
Rhodesia the output is steadily advancing and has been ever 
since 1905, when the mining law was modified so as to permit 
individual as well as company operations. Prospectors for gold 
are a superfluity in that country, for all the lodes carrying the 
precious metal have been located for centuries. But it is cer- 
tain that Rhodesia has great undiscovered wealth in other metals, 
notably those of the rarer class like platinum, chromium, tung- 
sten, tin, etc., which are usually encountered in the primitive 
rocks so abundant there; and if the laws and customs could be 
modified so as to attract the real mineral pioneer great material 
benefits would surely result. The southern end of the African 
continent was at one time a peninsula projecting from the Ant- 
arctic land mass, and later an island like Australia. Much of it 
has never been submerged since early geological time, and while 
erosion through countless centuries must have carried away vast 
amounts of the metals that arose from below into its primitive 
rocky floor, there are indications that much still remains. 

13 



184 INTERNATIONAL MINING LAW 

CAPE COLONY 

(Law of December 23rd, 1898, with amendments to date of January 1st, 1917) 

The State claims the exclusive ownership of the precious metals 
and precious stones within its boundaries, whether on the public 
domain or on privately owned land; and the exclusive ownership 
of all other metals and minerals on the public domain, and also 
on privately owned land except where the deed of grant of the 
same expressly passed mineral or underground rights. It will 
not sell its mineral deposits. But it allows search for them, will 
grant prospecting areas, and permit the location of claims, which 
can be converted into mining leases, if desired. 

Prospecting is not free. A license is required. The document 
costs 2s. 6d., is good for 30 days only, but is renewable monthly 
thereafter at the same price for a total period of 12 months. It 
carries the right to search for all the metals and minerals on the 
public domain, and also on privately owned property (the consent 
of the owner having first been secured) where mineral rights have 
not been reserved; otherwise, without his consent, excepting on 
areas covered by buildings, or enclosed and cultivated, or devoted 
to the public use as parks, cemeteries, townsites and other public 
utilities. The details of the law may conveniently be considered 
under three headings, namely, Precious Metals, Precious Stones, 
and Base Metals and Minerals. 

Precious Metals 

A licensed prospector may stake off a rectangular area 7500 by 
800 feet, and hold exclusive exploration rights therein so long as 
desired during the life of his license or any extension thereof, 
provided operations are carried on with reasonable diligence and 
intelligence. The prospector is required to report promptly 
(verbally) all mineral discoveries made, whether in workable 
quantity or not, and when ore is found in payable amount to 
make a sworn statement to that effect before the nearest Civil 
Commissioner. Any such discoverer who desires the exclusive 
possession and full working rights for his "find," and who can 



SOUTH AFRICAN SYSTEM OF MINING LAW 185 

prove to the Commissioner that it is of value, or capable of being 
developed to such a status, is entitled to stake out within his 
prospecting area 25 unit claims in a block, if on private property, 
and 50 of such claims if operating on the public domain, said 
staking to be done immediately after the proclamation of the 
region as a "Public Digging" before any other claims are allowed 
to be staked. Such a location, being the first made in a new 
region, may be held and operated thereafter by the claimant, 
free of claim license tax. All subsequent locators have to pay 
this tax. 

The unit mining claim measures 150 feet along the strike or 
outcrop of the vein, is rectangular in shape, and 800 feet in width, 
with the right to lay off any part or all of that width as the 
locator may see fit, so long as the outcrop is included. There 
are no extralateral rights. No other discoverer's claim is 
allowed within a distance of six miles on the same lode or vein. 
After the discoverer's claims are staked, other prospectors who 
may have been working within the limits of the proclaimed area 
may locate ground on the same vein, but only to the amount in 
each case of two unit claims, and as soon as ore extraction begins 
must pay claim license money monthly in advance. 

If the discovery is made on private land, and the Governor for 
any reason should refuse to proclaim the region as a Public Dig- 
ging, the discoverer may still stake off the 25 unit claims allowed, 
provided he can make a satisfactory agreement with the surface 
owner. 

In the case of a discovery made upon Crown land, and the 
refusal of the Governor to proclaim a Public Digging, the dis- 
coverer may demand a lease, the area of which shall be decided 
by the Governor, but may not exceed 100 morgen (about 210 
acres). The term is five years, with the right of indefinite 
renewals of the same period, and the rental ten shillings per 
morgen (2.1 acres) per annum, payable in advance. 

Claims other than those of the discoverer, desired by prospec- 
tors who may have been searching on the proclaimed area at the 
time of the discovery, may not be staked until the date arrives 



186 INTERNATIONAL MINING LAW 

for the proclamation to become effective for the general public. 
Then, any male of legal age and status may stake off up to five 
unit claims in a block. Within six days these must be registered. 
No staking is allowed on Sundays or on legal holidays, or between 
sunset and sunrise. The staking requirements are simple and 
inexpensive. The government reserves the right to demand sur- 
veys on all claims, at the expense of the claimant. Surveying 
fees are moderate. 

The registration of a claim costs 20 shillings, and is good 
for a month only. Thereafter re-registration must be effected at 
each recurring monthly date, on each unit claim, and the 20- 
shilling fee paid. After the first registration conveyancing rights 
are complete. 

When claims are un worked for a period of four months the 
District Inspector has the right to double the monthly license 
fee, and after eight months of idleness it may be quadrupled. 
But upon a showing satisfactory to the Inspector (sickness, for 
instance), a four month's certificate of protection may be 
obtained. 

A discoverer of a new alluvial field has the right, after he has 
proven to the satisfaction of the Civil Commissioner that the 
field is a payable one, and upon its proclamation by the Governor 
as a public Digging, before any other claims are staked, to take 
up 20 claims in a block, and to hold and work the same free of 
license money, so long as all other provisions of the law are 
complied with. 

The alluvial claim is a rectangular area measuring 150 by 150 
feet. But upon its being shown that a claim so laid out works a 
hardship, one of irregular shape may be allowed by the authorities, 
but the area taken must not exceed 20,000 square feet. 

The license fee on all classes of claims is 2s. 6d. per month per 
claim, except when on private property, when it is five shillings, 
one-half of which goes to the surface owner. 

When a lode is discovered on an alluvial claim the claim holder 
can have his claim converted into a reef claim if he so desires, and 
must do so if he intends to mine upon the lode. 



SOUTH AFRICAN SYSTEM OF MINING LAW 1X7 

All alluvial claims must be re-registered monthly at a, cost of 
two shillings and sixpence per claim. Alluvial claims remaining 
unworked for 14 consecutive days, excluding Sundays and legal 
holidays from the count, may be declared abandoned by the 
authorities. 

All gold recovered from the operations of reef or alluvial claims 
must be registered not later than the second day of the month 
following its recovery, at the office of the Inspector of the district. 

Precious Stones 

The prospecting area for precious stones is a circle with a diam- 
eter of 1000 yards, in the center of which a stake must be planted 
inscribed with the name of the claimant and the number of his 
license. Such a claim may be located only on Crown land. Dur- 
ing the prospecting period this stake may be moved at the will 
of the prospector, so long as his circle does not encroach on the 
area of some other prospector. To place such a claim upon 
privately owned land the consent of the surface owner must first 
be obtained. In both cases a notice of the discovery must be 
given to the Civil Commissioner within a month, and monthly 
thereafter a report of the amount of ground washed and the yield 
of the same must be made to the authorities. The first discoverer 
of a payable precious stone deposit in rock (a pipe) is entitled to 
locate 50 claims, and in the case of an alluvial deposit twenty claims, 
and hold and work the same free of license money so long as he re- 
tains the ownership and conducts his operations in accordance with 
the general provisions of the law. Upon notice to the authorities 
of the discovery, and satisfactory proof that it is of importance, 
the area is surveyed by the government, and, excluding the 
discoverer's block, is marked off into claims 30 feet square and 
proclaimed as a Public Digging. Thereupon, on the day named 
for the proclamation to go into effect, the claims in the marked- 
off area are sold at public auction, either singly or in blocks of 
not over 20. The purchasers of these must register them at 
once at a cost of 20 shillings per claim, and re-registration at the 



188 INTERNATIONAL MINING LAW 

same charge must be effected monthly thereafter to maintain 
possession and working privileges. Also a monthly claim license 
is required, payable in advance. The amount of this is 10 shil- 
lings per month when the deposit is an alluvial one, and 20 shillings 
when it is in rock. With each claim an area of an acre in extent 
is granted for operating purposes, situated outside of the pro- 
claimed tract. No person is allowed to register a precious stone 
claim unless he can prove his standing as a reputable citizen of 
the community. A royalty of 1% of the value of the stones 
recovered is also payable upon declaration, which must be made 
as in the case of gold. 

Dredging areas for gems on Crown land may be obtained. 
These take the form of leases. A prospecting license is first 
required, which costs £15 sterling. This confers the right to 
stake off an area on a public river not to exceed four miles of its 
length, or if upon a lake, lagoon or marsh, of not more than 200 
acres. Immediate registration is required, which is good for 
one year. After that period, if the ground is retained, it must be 
converted into a Lease. The area allowable is two miles of a 
river channel or 100 acres of lake, lagoon, or marsh. The term is 
three years, renewable up to a total period of 21 years. The 
rental is sixpence per acre per month, in advance, plus a royalty 
of 1 % on the gross value of the stones recovered, which must be 
declared monthly. 

Base Metals and Minerals 

A special prospecting license is required for searching for this 
kind of mining property. It costs one shilling, is good for a 
month, and may be renewed at the same cost for a total period of 
12 months. Under it on free public land, a prospecting area of 
1000 acres may be staked off, or a circular area with a diameter 
of 2482 yards with beacon stake at center, upon which the 
locator has exclusive prospecting rights during the life of his 
license. But he is under the obligation to conduct his operations 
on this tract with diligence, and to the satisfaction of the Minister 
of Mines. 



SOUTH AFRICAN SYSTEM OF MINING LAW 189 

Upon the discovery of payable ore on such a tract the discoverer 
is entitled to stake off a claim of not more than 1000 acres in 
extent, which must be surveyed at his cost, and upon which he 
will be given a lease. This lease covers the right to produce base 
metals and minerals only, and does not allow the production of 
the precious metals without a further license. Its term is one 
year, with the right of renewals up to a total period of 99 years. 
During the first year there is no rental. After that the rental 
is one shilling per acre per annum, or less, at the discretion of the 
Minister of Mines. This official may also impose a royalty 
charge. During the term of the lease, such grants must be 
operated to the satisfaction of the district Inspector of Mines, 
in accordance with the regulations of the law. They may be 
assigned or sublet with the consent of the Governor. During 
the first two weeks in each year (after the first) in the life of 
such a lease, sworn reports must be made upon the operations of 
the year passed, with complete statistical details of production, 
etc. 

NATAL 

(Law of November 14th, 1900, amended to date of January 1st, 1917) 

The right of mining for and disposing of all minerals on or in 
land situated in the Province is declared to be exclusively vested 
in the government of the same, and covers all mineral substances, 
whether found on the unoccupied Public Domain, or in privately 
owned land; excepting however where, previously to the passage 
of this law, the mineral rights have been sold, or alienated in 
perpetuity. 

The law recognizes three general classes of mining claims or 
properties, to wit: 

Alluvial Claims, which are granted for the mining of precious 
stones and any and all desirable minerals or metals that occur 
disseminated through the surface soil. Their size is 100 feet 
square. 

. Mining Claims, which are granted for the purpose of pros- 
pecting and mining for the metals, and other minerals found in 



1 90 IN TERN A TIONAL MINING LA W 

rock in place (excluding coal), beneath the surface. Their 
maximum size is 300 yards square. 

Mineral Claims, which are granted for the purpose of pros- 
pecting or mining for coal, oil, gas, building stone, iron stone and 
such substance. 

Each one of these may be applied for either as a prospecting 
or a mining claim, or the first may at any time be converted into 
the second. 

Prospecting is nominally free to all persons of either sex, if 
over the age of 16, and of European birth or descent, and such 
individuals may stake out for surface inspection up to four of 
either of the three classes of claims, on either public or private 
land; but no excavation of any kind must be made without first 
procuring a prospecting or mining license, and application for 
the same must be made within 14 days of the act of staking. 

Prospecting licenses cost one shilling, are good for three months, 
are renewable indefinitely at the same cost, and permit the 
location of one claim only. If it is desired to locate more than 
one claim, additional licenses must be taken out. No more 
than four such licenses will be issued to an individual at any one 
time, but such licenses are transferable, and as many as desired 
may be purchased from others who are willing to sell them. 

Prospecting claims must be registered within 14 days of the 
date of staking. The registration fee is five shillings. A claim so 
staked and registered gives the holder the exclusive right to 
prospect within its bounds, but not to sell ore found, nor in any 
way to realize value therefrom. 

Prospecting licenses may be paid for in advance for four 
terms (of 3 months each), if desired, but for no longer period. 

Contiguous prospecting claims owned by one or more indi- 
viduals may be consolidated into " blocks" of not more than 12 
claims each, with not more than four in one line. Such consoli- 
dation must be registered, the fee for which is five shillings per 
claim per three months. 

Prospecting claims, from and after one month from date of 
registration, must be worked continuously, except on Sundays 



SOUTH AFRICAN SYSTEM OF MINING LAW 191 

and public holidays, under tin* supervision of one while individual 
of European birth or descent over the age of sixteen, who also 
must reside on t ho claim or in its immediate vicinity. The 
Deputy Commissioner of Mines must be kept advised of the 
name of such person working; or supervising work, and no indi- 
vidual can be so in charge of more than one claim, or more 
than one consolidated block of claims. Under certain conditions, 
and at the discretion of the Commissioner of Mines, exemption 
from these labor conditions can be arranged at a cost of £1 per 
claim per three-month term. 

Prospecting upon unused or unoccupied private land may be 
done without the consent of the owner, and prospecting claims 
may be located, but only to the extent of four claims to any 
individual (except the surface owner), and only two claims can 
be located on any one line. After the issue of four prospecting 
licenses to prospect on any given tract of private land, whether 
said four are issued to one or to more individuals, no others 
may be issued against the land of that owner for three months. 

Surface owners may explore and excavate on their own land 
without taking out a prospecting license, but may not stake off 
a claim without first taking out a mining license. On the other 
hand, there is no limit to the number of mining claims a surface 
owner may stake off on his own ground. 

When it is desired to locate prospecting claims on privately 
owned land, in addition to the regular fee for such license the 
applicant must deposit with the Commissioner of Mines the 
sum of £2 10s., for each and every claim he desires to locate, 
such money to be held by the Commissioner to compensate 
the surface owner for any damage that may result from the 
exploration. This deposit is returnable if no injury is inflicted. 

Unless the surface owner consents, the prospector on private 
land may have only two working assistants while exploring on 
his claim prior to its registration, or its conversion into a mining 
claim. 

. When a prospecting claim is abandoned, all excavations made 
upon it must be filled up. 



192 INTERNATIONAL MINING LAW 

The mining Commissioner has the right, at any time, to 
demand the conversion of a prospecting claim into a mining 
claim, if, in his opinion, the public interests require it. If this 
demand is not complied with, and good cause is not shown for 
the failure to do so, the claim, at his discretion, may be declared 
forfeited. 

All claims of all kinds, must be rectangular in shape. 

Stakes may be of iron of one inch diameter, or of wood three 
inches through, and must stand three feet above the surface. 
At the top of each a plate of wood or iron not less than six inches 
square, must be attached and maintained, and on it must be 
written or painted the name or names of the owners, the date of 
staking, and, after registration, the registered number of the claim. 
Also, after survey, and within one month after registration of the 
same, these must be replaced by solid masonry monuments not 
less than two feet high. Trenches four feet long and six inches 
deep must be dug from each corner stake towards the next two 
corners. 

Mining Claims 

Not more than four alluvial or metal-mining claim licenses may 
be taken out by anyone entitled to take out a prospecting license. 
The cost is two pounds per month for the alluvial and mineral, 
and one pound per month for the metal claim, payable in advance 
and renewable indefinitely so long as the other provisions of the 
law relating to them are complied with. Each license is good 
for the location of one claim of the class specified, and prospecting 
licenses may at all times be converted into mining claims on the 
same terms. 

Prospecting and mining licenses are saleable and transferable, 
so that any individual legally entitled to hold such documents 
may become the owner of as many as he can purchase from other 
individuals, in addition to those he can take out himself. 

All claims located under such licenses must be promptly regis- 
tered, surveyed and monumented at the cost of the claimant. 
Registration fees are ten shillings. Surveying fees are as follows : 



SOUTH AFRICAN SYSTEM OF MINING LAW 193 

For a single alluvial claim £5- 0-0 

For each additional contiguous claim 1- 0-0 

For a single metal claim G- 0-0 

For each additional contiguous metal claim 1- 5-0 

For a single mineral claim 8- 0-0 

For each additional contiguous mineral claim 1-10-0 

Mining claim owners in good standing have the right to dispose 
of any ores or metals taken from their claims, or to reduce them 
in mills or smelters to marketable products, but before so doing 
a sworn statement must be made to the Deputy Commissioner 
of Mines as to the nature of the ore found and to be disposed of, 
and a sample of it exhibited. 

General Provisions 

Raw gold or gold dust cannot be used as money to pay for 
anything, but must be sold to the licensed buyers of the com- 
modity, who are authorized to purchase at stated prices. 

Surface owners, working mines on their own ground, are re- 
quired to pay only half the fees that are due from others. 

There are no royalties on metals, minerals, or precious stones 
produced. 

Default for one calendar month in the payment of fees, dues, 
fines or any other taxes, entitles the authorities to make a 
written demand for the same, and impose a fine up to two shillings 
per diem and costs for such part of another calendar month as 
may elapse without settlement. At the end of the second month 
the claim may be sold at auction. The government automatic- 
ally has a preferred lien over all creditors, whether the latter are 
secured or not. 

Conveyancing rights are complete for all registered claims if the 
instrument of conveyance is recorded. Transfer fee is £1 per 
claim, plus 2s. 6d. recording fee. 

ORANGIA 

(Law of June 17th, 1904, with amendments to date of January 1st, 1917) 

The right to prospect and mine for any mineral substance in the 
Province, or to hold mining property, is granted only to white 



194 INTERNATIONAL MINING LAW 

persons. Aboriginal native Africans, Asiatics, or Polynesians, 
Colored Americans, Arabs, and Chinamen are debarred. 

Precious Metals and Precious Stones 

The law recognizes the paramount right of landowners, whose 
deeds do not expressly reserve to the Province the ownership of 
precious metals and gem stones, to all underground rights within 
their lines. They cannot be forced — except through expropria- 
tion proceedings — to allow prospecting or mining upon their 
property. Nor do they require a license to warrant them in 
conducting explorations upon it themselves, or for others to 
whom they may give permission. But, before doing either of 
these things, the local magistrate must be informed of the inten- 
tion, whereupon the government automatically acquires the 
right, at any time, after three days' notice to the owner, to pro- 
claim the area a " Public Digging." 

On all other lands within the Province, including alienated 
lands where the mineral rights have been reserved in the grant 
from the Crown, a prospecting license is required. This is 
obtainable from the local Magistrate at a cost of 10 shillings, 
and is good for a calendar month. Thereafter it is renewable 
indefinitely at a cost of five shillings, payable monthly in advance. 
It conveys only the right to prospect and explore up to the point 
of producing mineral, but ore so produced cannot be sold, milled 
or smelted, or in any way turned into money (except by the sale 
of the claim and all upon it), until a claim license has been taken 
out. 

The unit lode mining claim, which applies to all varieties of 
lodes, veins, or deposits in rock in place, is a rectangle measuring 
150 feet along the outcrop, and 400 feet across it. 

The unit alluvial claim is a rectangle measu ing 150 feet on 
each side. 

The first discoverer of a mineral deposit of the first class on 
private land has the right to stake up to 75 of such unit claims, 
provided they are laid out so as to leave no vacant spaces between, 
and in the form of a rectangular block whose length does not 






SOUTH AFRICAN SYSTEM OF MINING LAW 195 

exceed twice its width, and provided the block so formed does 
not exceed in area one-twentieth of the area of the private tract 
in which the discovery is made. 

The first discoverer of an alluvial deposit on private land, has 
the right to stake up to 20 claims of the second class, to be 
laid out in a rectangular block as in the former case, and also 
provided the area does not exceed a similar proportion of the 
tract. 

In both these cases the discoverer may work his claim and 
realize upon his product, without payment of any claim license 
money, so long as he remains, in good faith, the actual owner 
thereof. But to maintain that right his prospecting license must 
be promptly renewed monthly in advance. 

To prospect upon Crown land an application must be made to 
the Lieut. Governor, specifying the area desired. Whereupon, 
at the discretion of this official, and upon terms and conditions 
mutually satisfactory, an exclusive right to explore the same 
may be obtained. The law provides no other way for the explora- 
tion of the public Domain. 

A discoverer operating under such a franchise or concession, 
has the right to locate 51 claims of the first class and 25 of the 
second. In both cases to be laid out in a compact rectangular 
block, whose length does not exceed twice its width. So long 
as such discoverer or discoverers remain the actual sole owners 
of the ground so located, they may extract mineral and realize 
on the same without payment of claim licenses. 

All such discoveries hereinbefore cited must be reported to the 
local Magistrate within 30 days. 

When any such discoveries are made, the region is at once 
visited by an official called a Mine Inspector. If, in hs op nion, 
it is of importance, the Governor has the power and is under 
obligations to proclaim it a " Public Digging," to be thrown 
open at a certain date. If, however, the Inspector reports that 
the discovery is of minor importance, and not likely to result in 
the development of payable ore or ground in any quantity, the 
matter is left in abeyance. 



196 INTERNATIONAL MINING LAW 

During the interval between the proclamation and the date 
set for opening a " Public Digging," the discoverer on Crown land 
has the right in addition to the 51 claims he has already located, 
to stake out an area called a "mynpacht." The size of this grant 
is determined by the agreement previously made between the 
prospector and the Lieut. Governor. 

During the same interval, when the discovery has been made 
upon private land, whose precious metal and precious stone 
rights were not reserved by the government when the tract was 
alienated, and where the owner himself has conducted explora- 
tions or permitted others to do so, the said owner has the right 
to locate for himself a "mynpacht" the extent of which must not 
exceed 75 claims, nor one-tenth of the area of the tract. But 
before doing so he must take out a prospecting license at its 
regular cost of 10 shillings, which is renewable monthly up to 
a total period of 20 years, at the same price. In addition, the 
owner has the further right to locate another block of claims up to 
75 in number, provided that number does not exceed one-twen- 
tieth of the area of the tract. On this block the usual claim 
license fees are payable. 

No such privileges as these accrue to land owners in whose 
deeds the precious metal and precious stone rights have been 
reserved. 

When an area has been proclaimed as a " Public Digging," 
has been duly advertised, and the first discoverer has exercised 
his rights, the surface owner (if it be on alienated land) has staked 
off the areas allowed him, and the date has arrived for the 
public opening, two procedures may be followed by prospectors 
who may desire to make other locations. 

Upon private land, the law provides that during the period 
between the proclamation and the date of opening, all prospectors 
who desire to locate claims on the proclaimed area may register 
their names on a public list which is posted on the bulletin board 
at the office of the local Magistrate, each such registration to be 
accompanied by a fee of 20 shillings. When the opening day 
arrives each prospector is allowed, in the order in which his name 



SOUTH AFRICAN SYSTEM OF MINING LAW 197 

appears on the list, to locate up to 50 claims of the first class, or 
up to three of the second. 

Upon Crown land, during the period between proclamation 
and opening, the government surveys out the land in blocks of 
six claims each, which upon the opening day are sold at auction 
to licensed prospectors. 

As soon as a claim or block of claims is staked out, and pos- 
session given, claim licenses become due. These are, for a claim 
of the first class five shillings per month, and for the second class 
20 shillings. 

All claims must be surveyed at owner's expense within six 
months of the date of the first claim license, and a plat of the same, 
in triplicate, approved by the Surveyor General, and bearing a 
stamp of the value of ten shillings, must be filed with the local 
Magistrate. 

Within three days of making a precious metal or precious stone 
discovery of any kind, the discoverer must report the fact to the 
local Magistrate, and file with him a sketch plan showing, as 
nearly as possible, the situation and surrounding land marks. 

The production of and realization upon ore or metal found 
may begin any time after payment of claim licenses, but not 
before. 

As soon as production and realization occur, claim licenses of 
the first class advance to 20 shillings per month, but are reduced 
to five shillings when production ceases. There is no change 
under similar conditions as to claims of the second class, as they 
are supposed to be productive from the start. 

If a claimholder neglects development, his claim license, at the 
discretion of the Mine Inspector, may be doubled, and continue 
doubled until reasonable development work is begun. 

Failure to pay claim licenses promptly in advance each month 
gives the authorities the right, after due and reasonable notice, 
to declare the claim forfeited. 

Forfeited claims are sold at auction, and all cash received, after 
deducting all dues and fines in arrears, is divided equally between 
the government and the former owner. 



198 INTERNATIONAL MINING LAW 

Base Metals, Coal, Oil, Sulphur., Salt and All Other 
Desirable Minerals and Substances 

These, when found on alienated lands, belong without reserve 
to the owners of the same. The government makes no claim of 
any kind upon them, and the permission of the surface owner 
must be obtained to search for them. No prospecting license or 
claim license is required. The prospector deals directly with the 
surface owner. 

If it is desired to prospect for them on Crown land, the pros- 
pecting license costs 2s. 6d. on application, and five shillings per 
month thereafter. To secure exclusive prospecting rights over 
any given area, an application must be made to the Lieut. 
Governor, who will grant t rights subject to such conditions as he 
may deem proper. The law makes no provisions for filing claims 
on discoveries of these substances, and imposes no claim license. 
In lieu thereof a royalty on the gross value of the metal or material 
won is imposed, which is never less than 2J^%. 

All discoveries on either class of land must be reported within 
60 days to the local Magistrate. 

The government reserves the right to levy a tax on all mining 
properties of this class, in addition to royalty, the same, however, 
never to be in excess of 1)4% on the gross value of the metals or 
minerals produced. 

General Provisions 

On precious metal and precious stone claims a procedure called 
"Special Registration" is required within three months after 
production begins. The costs are moderate, and the process 
simple. When completed, the title is incontestable except for 
fraud, so long as claim license payments are promptly met when 
due. 

No claims of any kind may be located on Sundays, or on public 
holidays, or between sunset and sunrise. 

Alluvial claims may be located and worked on top of the other 
class of claims, provided proper security is given to the owner or 



SOUTH AFRICAN SYSTEM OF MINING LAW 199 

owners of the latter, to cover possible interference or damage, or 
their permission is secured. 

Conveyancing rights are complete on all claims that have been 
surveyed, and the fees for recording the same are reasonable. 

Individuals may hold by purchase an unlimited number of 
claims. 

Claims cannot be abandoned without first informing the local 
Magistrate of the intention, and filing with him a map of the 
premises approved by the Surveyor General and bearing a stamp 
of ten shillings. 

Prospecting and mining are prohibited within 200 yards of any 
building, public park, reservoir, ditch, railroad or other public 
utility, or of a cultivated area. 

Raw gold cannot be used as money, nor may it be legally 
acquired in any way from a person of color. 

It is illegal to prospect or mine for any base metal or any other 
mineral — except gold, silver, or gems — upon a precious metal or 
precious stone claim. 

Water rights are obtainable at reasonable cost, and title to the 
same are maintained by reasonable usage. 

Explosives may be purchased only by securing a permit from 
the local Magistrate, which permit must bear a stamp of one 
shilling. They may be used only by individuals holding a 
" blasting certificate." This is issued, free of charge, to any 
party who gives satisfactory evidence to the Chief Inspector of 
Mines that he knows how to handle explosives safely. 

SOUTHERN RHODESIA 

(Law of 1903, with amendments to date of January 1st, 1917) 

By virtue of an agreement with the government of Great 
Britain, the right of searching and mining for, and disposing of 
all metals, minerals, and mineral oils throughout the entire 
territory of Southern Rhodesia, whether found upon unoccupied 
land, or upon land the surface of which has been alienated, is 
vested in the British South Africa Company, which also governs 
and administers the country. 

14 



200 INTERNATIONAL MINING LAW 

This corporation does not grant fee simple titles to its mineral 
lands,- but, subject to the provisions of the mining law and the 
regulations thereunder, grants usage of the same, with full rights 
to recover, dispose of, and realize upon all values that may be 
found therein. 

Prospecting is not free. But any individual of legal age and 
status, of either sex, or the agent of a company legally authorized 
to do business in the country, may take out any desired number of 
Prospecting Licenses, at a cost of £1 each. Every such license 
conveys the right to prospect in any part of the country not 
already occupied for mining purposes, to stake off one mining 
location, consisting of ten or less unit mining claims, or one allu- 
vial claim, or one claim of any other class of mining tenement, and 
to explore the same; and, after they are registered, to sell, and 
make all other usual conveyances. Such transfers, however, 
must be made through the proper offices of the B. S. A. Co., for 
which a small fee is charged. 

Areas exempted from prospecting are the usual ones, such as 
public squares and parks, cemeteries, native kraals (towns), and 
land under cultivation or otherwise improved, or used as ditches, 
reservoirs or roads. Nor may the prospector operate nearer than 
500 yards to a homestead and its appurtenances, or than 200 
yards to any building, except with the written consent of the 
owner thereof. 

In conducting his operations the prospector, having selected 
an unoccupied area, is first required to post conspicuously a 
"Notice" thereon, entitled a "Prospecting Notice/' upon which 
is written his name, date of posting and number of license. When 
this is done it confers the exclusive right, for the succeeding 31 
days, to prospect within a circular area with a radius of 1000 feet 
from the notice. 

If a promising discovery is made within such an area during 
the period named, and the discoverer desires to acquire posses- 
sion of it, he must plant a post at the discovery place inscribed 
with the initials D P (discovery post), and also, before the 
expiration of the term he may stake off a location or block of 



SOUTH AFRICAN SYSTEM OF MINING LAW 201 

ten unit mining claims, within which block must be the D P 
post. This block in shape must be a parallelogram not over 
1500 feet in length and 600 feet in width, with substantial 
stakes or stone monuments at each of its four corners and at the 
centers of the end lines. It is not required to erect stakes at the 
corners of the unit claims of which the block or mining location 
is composed. Following the staking a registration notice must 
be posted, upon which is given the name of the claimant, the 
date of posting, the number of the license under which the loca- 
tion is made, a sketch plan of the location showing its shape and 
the length of the center and end lines, and, as closely as possible, 
the cardinal points of the compass. The location must always 
be laid off with its length along the strike of the vein, and upon 
each of its six stakes must be inscribed the number of the license 
under which it is claimed. 

Within 31 days thereafter a copy of both the prospecting and 
registration notices must be filed at the office of the nearest 
Mining Commissioner, together with a sketch plan of the claim 
indicating approximately its position with respect to surrounding 
landmarks. The recording fee is five shillings. At the same 
time the principal metal or metals or minerals for which the 
claim is to be worked must be named, and the license under which 
it was located surrendered. In consideration of the performance 
of all these things the claimant is given a " Certificate of Registra- 
tion," which is prima facie evidence of his title. Within four 
months thereafter all the location stakes must be replaced by 
temporary stone monuments (not necessarily of masonry), not 
less than two feet high and four feet in diameter at their base, 
from the center of the top of which must project a wooden or 
iron stake to the height of two feet more, to which must be 
attached a plate of metal or wood not less than nine inches 
square, bearing the name of the claim and all the data given 
on the prospecting notice. Claims may be located on any day 
of the year, but not during the hours between six P. M. and six 
A. M. standard South African time. 

A mining location so made gives the holder thereof, so long as 



202 INTERNATIONAL MINING LAW 

the title thereto is maintained in accordance with the further 
provisions of the law, the right of mining all lodes or reefs within 
the boundary lines projected downward vertically to an indefinite 
depth, and also the extralateral right of pursuit of the lode upon 
which the discovery was made, between vertical planes passing 
through the end lines of the claim indefinitely extended both 
horizontally and vertically. The holder has also the exclusive 
right to the ownership of any alluvial gold or other metal that 
may be found on the surface, and to the use of the surface within 
his lines. But the right to produce and realize upon ores or metals 
revealed by development work is not yet granted, and does not 
accrue until a tax called " claim license" is paid, as hereafter 
detailed. 

Within four months after registration at least 30 feet of 
development work (sinking or drifting) must be done. During 
each calendar year succeeding the end of this four-month period, 
the claimant must execute at least 60 feet of development work 
on his ground, must make a sworn statement to that effect, and 
file it with the Mining Commissioner, accompanied with a fee of 
ten shillings. In return, a document termed an " Inspection 
Certificate" is issued to him, which has the effect of protecting 
the title to the location during the following calendar year. 

The unit lode mining claim is nominally a rectangular paral- 
lelogram, the maximum length of each of the two shorter lines 
being 150 feet, which must be laid out in the supposed direction 
of the course of the lode, and which is called its length, and of each 
of the shorter sides 600 feet, laid out at right angles to the others, 
and called the width. Any number of these not exceeding 
ten, adjoining each other on their long sides, may be located as a 
" block" or " mining location," under the right conferred by 
the prospecting license. When the block or location includes the 
full ten unit claims permitted, it forms a rectangular parallelo- 
gram measuring 1500 feet on its longer sides, and 600 feet on 
its shorter. For all purposes connected with the maintenance of 
title and of development, the block of ten or less unit claims is 
the unit considered. But when the production of ore begins, a 



SOUTH AFRICAN SYSTEM OF MINING LAW 203 

further form of permit is required as stated above, which is called 
a claim license. For this, the unit claim of 150 by 600 feet is 
the basis of all calculations. This license must be paid on all 
such unit claims from which ore is being extracted, but is not 
demanded upon those which are not yielding any material of 
value. 

The unit alluvial claim is a rectangle 200 feet square. Only 
one of these may be taken under the authority of a prospector's 
license. There is no such thing as a block of alluvial claims, 
but a prospector may locate as many of them as he chooses, 
provided he holds an equal number of prospecting licenses. Each 
one — although they may adjoin — must be staked in the same 
manner and with the same notices and other formalities as in 
the case of a lode location, and registered within 31 days there- 
after. Registration fee is five shillings. At the same time 
the claimant must take out a license to work. This document 
costs five shillings, and is good for 30 days only. It is, however, 
renewable indefinitely at the same cost, provided the ground is 
worked continuously, except on Sundays and legal holidays. 
All gold or other metal or mineral recovered from the operations 
must be declared to the government monthly, and a royalty of 
2H% paid thereon. 

All registered mining locations are, by the terms of the law, 
held by the owner thereof on joint account with the British South 
Africa Company — called familiarly the Chartered Company — in 
the proportion of 70% to the former and 30% to the latter; 
and, except as to alluvial claims, or other claims for which special 
provisions are made, no metals or ores of any kind may be taken 
away from them and realized upon in any manner, until such 
time, and upon such terms as may be mutually agreed between 
the two partners. To this end, any claim holder who desires to 
begin the production of ore is invited to submit to the Chartered 
Company the details of a scheme by which the interest of the 
Company may either be discharged, or otherwise taken care of. 
This takes the form either of the organization of a public company 
and the delivery of 30% of its capital stock to the Chartered 



204 INTERNATIONAL MINING LAW 

Company; or of an agreement to develop, equip, and operate 
entirely at the expense of the claimholder, and pay to the Char- 
tered Company in perpetuity an agreed percentage of all values 
recovered. If either of these programs is accepted the requisite 
authority is granted, and thereafter, as long as the provisions 
of the contract entered into are observed, the claimholder 
possesses all the privileges of an actual owner. In the event of 
an arrangement of the second class being entered into, the royal- 
ties range from 2)4, % to 7J£ % on the gross value at the mine 
of any and all metals and minerals recovered according to cir- 
cumstances, and are payable monthly. 

In addition to stock received in commutation of its 30% 
interest, in all cases where property is capitalized, and also 
in addition to royalties in lieu of the same when properties are 
developed, equipped and operated solely at the expense of the 
claim holder, the Chartered Company reserve the right to impose 
and collect the tax called the "claim license" on all ground 
where permission has been granted to mine in either way, 
amounting to 10 shillings per month. For a full block of unit 
claims of the dimensions of 1500 by 600 feet, this tax amounts 
to about $450 per year, but is payable only for such unit claims 
as for the time being are producing. Again, under certain 
conditions, the tax is reduced to five shillings per month, and 
during periods of time when production ceases altogether, either 
from exhaustion of ore, or the injury or destruction of part or 
all of the equipment, or other proper causes, exemption altogether 
may be secured. In such cases, however, annual inspection 
fees on each block of claims must be paid, or labor to their 
equivalence performed. 

The right to a mining location carries with it the exclusive use 
of the surface thereof for all bona fide mining purposes, but if it is 
desired to open a store thereon and transact a general merchan- 
dise business, a license to do so must be procured. 

After the registration of a mining claim the right to sell or en- 
cumber it is complete, provided the grantee in the transaction is 
legally capable of receiving the title, and provided also that the 



SOUTH AFRICAN SYSTEM OF MINING LAW 205 

transaction is conducted in the office of a Mining Commissioner, 
and under the formalities and regulations provided. A document 
evidencing a sale costs £1, and in case the consideration is in 
excess of £100, there is a transfer fee of 1 % of whatever may be 
the excess. 

Mining locations that have not been registered may be aban- 
doned by simply withdrawing the stakes and posting a notice of 
abandonment on the post where the first notice was placed. But 
after registration a "Certificate of Abandonment" must be taken 
out at the office of the Mining Commissioner, at a cost of £1. 

The holder of a registered mining location may locate residence, 
mill, tailings or reservoir sites, or areas for any other purpose 
legitimately connected with mining, not exceeding a total of 
five in number, and not covering a total of more than 100 acres, 
upon any ground adjoining or in the vicinity of his claim that is 
still unoccupied, and without the purchase or usage of prospecting 
licenses to represent them. All such areas must be staked, posted 
with notices and registered in the same general way as with 
mining locations, but the right is reserved by the government to 
reject such locations if in its opinion there is just cause for doing 
so. If, however, the tender for registration is accepted by the 
Commissioner of Mines, certificates of registration will be issued 
which will cost at the rate of £1 per acre of area, and thereafter 
rental at the rate of five shillings per acre per month is required. 
Every site or tract so accepted and registered is thereafter in- 
alienably attached to the particular mining location for the use of 
which it was taken out, and the title thereto passes with that of 
the claim. Upon and under such sites the claim holder acquires 
all mining rights except that of the extralateral pursuit of veins 
therein. 

The right to prospect for the base metals as well as for all 
minerals is included in the privilege resulting from the possession 
of a Prospector's License. When a location is made the processes 
of staking, notice posting, registration and maintenance are 
similar to those already described for gold; and when locators of 
property of this kind are ready to produce — or "work for profit" 



206 INTERNATIONAL MINING LAW 

as the law expresses it — the prospecting area is convertible into 
a mining location in the same way. But when this point is 
reached the details for further procedure vary. 

What is called a " copper location," and which appears to 
apply to all base metals, may be staked off in any necessary shape 
so long as the boundaries are straight lines, and has a maximum 
area of 30 unit claims instead of 10, covering therefore approxi- 
mately 63 acres. The registration notice must mention the 
metal or mineral which is expected to be found and worked for. 
The registration fee is £1. 

Ore extraction can begin at once or at any time, but as soon as 
it does, claim license money is due at the rate of £5 per claim per 
month for the claims producing mineral. In addition, royalties 
on the gross value of the output at the mine are demanded as 
follows : 

On Bismuth, Cobalt, Copper, Mercury, Molybdenum, Nickel, 
Thorium, Tin, Tungsten, Uranium, and Vanadium; also on min- 
eral oils, gas and salt, at the rate of 3%, payable monthly. 

On Antimony, Asbestos, Barium, Strontium, Chromium, 
Graphite, Gypsum, Iron, Lead, Magnesite, Manganese, Mica, 
and Zinc, at the rate of 2% monthly. 

THE TRANSVAAL 

(Law of August 22nd, 1908, with amendments and additions to date of 

January 1st, 1917) 

The State claims the exclusive ownership of gold and silver, 
wherever found within its boundaries, without any exceptions; 
and of all other metals and minerals except where they occur on 
alienated land where mineral rights have not been reserved in the 
grant from the Crown. All Crown lands, therefore, which are 
not already occupied as mining properties, are open to prospect- 
ing and exploration for all the metals and minerals, and also all 
privately owned land, excepting when in use for residential or 
cultivation purposes, unless the owners themselves are already 
mining upon them, and unless the original grant under which 






SOUTH AFRICAN SYSTEM OF MINING LAW 207 

they are held failed to reserve the ownership of the base metals 
and the valuable minerals. 

Prospecting is not free. But any white person over the age of 
sixteen, and any legally incorporated company, may obtain what 
is called a " Prospecting Permit," good for 12 months, and for 
the precious metals only, at a cost of five shillings. This gives 
the holder the right to stake out one area measuring not more 
than 2000 ft. square, upon which, so long as operations are con- 
ducted to the satisfaction of the local Mining Commissioner, and 
are confined solely to prospecting and exploration, without 
production, exclusive rights are granted. Such areas, however, 
may not be selected within the limits of any town, public park, 
cemetery or other public reserve; nor within 300 feet of any spring, 
well, stream, reservoir or water works, or within 600 ft. of any 
building. 

Moreover, after the areas have been selected and staked, 
prospecting must not begin until, after notice in the govern- 
ment Gazette, and advertising in a newspaper circulating in the 
vicinity (if any), the Minister of Mines has declared it open. 

If the area desired is upon alienated land, the application for 
the " Prospecting Permit" must be accompanied by the written 
consent of the surface owner. 

All discoveries made upon such areas must be reported to the 
Mining Commissioner within 14 days. If, upon examination, this 
official considers the discovery of sufficient importance, he will 
give the holder of the " Permit" a document, authorizing him 
within a stated period (not to exceed 30 days), to stake out his 
claims within the area covered by the "Permit." 

The size of the unit claim is 150 by 400 feet. If the discovery 
has been made upon private land the permit holder may stake 
an area which must be at least the equivalent of 10 of these units, 
but may not be greater than the equivalent of 50 of them; if 
on Crown land, the minimum is the equivalent of 25 units, and 
the maximum the same as in the other case. A further rule 
prescribes that the block of claims, when staked, must be rec- 
tangular in shape, with length not greater than twice its width; 



208 INTERNATIONAL MINING LAW 

and, finally, it must not comprise a total area greater than one- 
ninetieth of the total area which is to be proclaimed as a result of 
the discovery, or, as the law puts it, the equivalent of "one claim 
to every sixty morgen," the "morgen" being approximately 
2.1 acres. 

As soon as the selected area is staked, the permit holder is 
entitled to demand a "Certificate" conferring the exclusive 
right to prospect and explore upon it for a period of three years 
from its date, without the payment of any claim license fees. 
But this certificate does not give the right to extract and realize 
upon any ore that may be found; and further, if in the opinion 
of the Mining Commissioner operations are not carried on with 
sufficient energy, claim license money may be imposed by that 
official. In any event, these become payable at the end of the 
three year term. But the claimant may begin production and 
realization at any time within the term, by beginning the pay- 
ment of claim licenses. 

Before ordinary mining claims, other than those already de- 
scribed which are known as "prospecting mining claims," can 
be located by anyone, the ground must be proclaimed as a 
"Public Digging/' by act of the Governor, and after a due course 
of public notices and advertising. After such proclamation no 
more "prospecting mining claims" may be located upon it, but 
only ordinary mining claims. All such proclaimed areas are care- 
fully monumented by the government, so that their boundaries 
may be easily traced by any one. Even then it is optional with 
the Governor either to throw the region open to public location, 
or to lease the whole or any part of it to individuals or corpora- 
tions, or to reserve it as a State mine, to be developed and 
operated under the supervision of the government Mining 
Engineer. Finally, he possesses the power, under the advice 
of the latter official, to withdraw the land, or any part of it, but 
in so doing may not affect injuriously any of the rights that have 
already been acquired upon it. 

Mining claims may be staked only by individuals over 16 
years of age, who are of white color and ancestry, and who are in 



SOUTH AFRICAN SYSTEM OF MINING LAW 209 

possession of a document called a " prospecting license." Such 
licenses are sold by the government to duly qualified persons, 
good for the location of one or more claims (but not to exceed 
fifty), according to the number expressed on their face, at the 
price of 2s. 6d. per claim if for use on Crown land, or five shillings 
per claim if to be applied on privately owned areas. Every such 
license expires in 30 days after its issuing date, but is renewable 
at the same cost twice. The staking of claims on Sundays or 
public holidays or between sunset and sunrise is not legal. 

All mining claims staked by virtue of such licenses must be 
rectangular in shape, must measure 150 by 400 feet each, must 
be contiguous if blocked, and the block must have a width not 
greater than half its length. " Furthermore, when staked upon a 
lode, the short side of each claim must be parallel with the as- 
sumed outcrop or strike of the vein, and the long side across it. 
No extralateral rights exist. The outcrop may be located at 
any distance from the short sides of the claim (but within it) that 
the locator desires. 

The act of staking must be reported at the office of the nearest 
Mining Commissioner within two to fourteen days (according to 
the distance from that office), and seven days thereafter perma- 
nent stakes must be erected at all external angles. Within 
one month the claimant must present to the Mining Commissioner 
a sketch plan of the claim and its vicinity, and a certificate 
from the hand of an official called a " Beacon Inspector" to 
the effect that the stakes are properly set and in order. Under 
certain conditions the Commissioner has the right to demand a 
survey. 

On ground so located and approved, three months' time is 
given free of claim licenses to explore and begin production, and 
if good cause is shown a second term of the same length may be 
granted on payment in advance of the fees first paid. At the 
end of this second period however, and in any event as soon 
as production begins, the " prospecting license" must be con- 
verted into what is called a " digger's license," and thereafter, 
continuously, claim licenses become due and payable in advance 



210 INTERNATIONAL MINING LAW 

at the rate of 20 shillings per month per claim as long as the 
property is held. No further title is granted, and the ground may 
be declared forfeited by the Mining Commissioner at any tirne^ 
upon default of the prompt payment of the monthly fees. 

The surface area of a mining property so acquired can only be 
used for purposes properly incidental to the natural operations of 
mining, and to those of the beneficiation of the ore produced. It 
may not be fenced. 

When base metals are found in a mining claim the Minister of 
Mines must be at once advised of the fact. This official may 
then, at his discretion, allow the discoverer to stake out up to 100 
unit mining claims of 150 by 400 ft. in size, upon payment as a 
claim license for them at the rate of one penny per claim per month 
thereafter; but on an area so granted, mining for the precious 
metals must be carried on only upon fifty of the claims so taken. 

A royalty of 1 % of the value of all base metals recovered is 
demanded by the government. No royalty is collected on the 
precious metals. 

RESULTS 

Metal production in South Africa dates from about 1 879 when 
parcels of copper ore began to come to Swansea, Wales, for reduc- 
tion, from Namaqualand on the west coast about 500 miles north 
of Capetown. In 1887, the gold mines of the Transvaal began 
their remarkable career, and in 1899 silver-lead ores were first 
exported from Beira on the east coast. Since then there have 
been intermittent shipments of tin, tungsten and chromium ores 
from various points in the Union of South Africa and Rhodesia, 
but not in sufficient amount — except as to chromium — to be 
notable. This part of the world has not as yet any metallurgical 
industry beyond the individual plants at the gold mines, and 
consequently, though the common base metals such as copper, 
lead, zinc and manganese are abundant, there is no market for 
their ores nearer than Europe or America. 

The metallic output of this field, from 1879 to the end of 1916 
has been as follows : 



SOUTH AFRICAN SYSTEM OF MINING LAW 211 

Metal Term Totals Annual average 1916 

Copper 38 years $ 119,750,505 $ 3,151,329 $ 19,974,400 

Gold 30 years 2,763,686,779 92,122,892 210,404,000 

Silver 18 years 7,302,978 405,721 750,000 

$2,890,740,262 $95,679,942 $231,128,400 

These figures show that the industry is in a flourishing condi- 
tion, the gains of 1916 over the averages for the several periods 
having been 534% in the case of copper, 128% in the case of gold 
and 85% in silver. Because it has consisted mainly of gold the 
South African production has not been affected so much by the 
abnormal prices for the metals that prevailed during the last 
three years of the term, though the large increase in the value of 
the output of copper in 1915 and 1916 was wholly due to this 
cause, as will be seen by an examination of the following table 
which contains no figures later than those of 1913. 



South Africa, 1879 to 1913: Cape Province, Namaqualand, Natal, Orangia, the Transvaal 
and Southern Rhodesia 



Metal 



Term 



Years 



Total product 
of term 



Average 
annual 
product dur- 
ing term 



Product of 
1913 



Gain (+) 
or loss ( — ) 
in 1913, as 
compared 
with 
average 



Copper. . . . 


1879 to 1913 


35 


$83,921,005 


$2,397,743 


$5,740,353 


+ 140% 


Gold 


1887 to 1913 


27 


2,156,091,952 


79,855,257 


196,045,566 


+ 145% 


Silver 


1899 to 1913 


15 


5,412,978 


360,865 


609,625 


+ 69% 








$2,245,425,935 


$82,613,865 


$202,395,544 


+ 144% 



CHAPTER XI 

The European Systems of Mining Law. Digests of 
the Mining Laws of Austria-Hungary, France, Ger- 
many, Great Britain, Italy, Norway, Portugal, 
Russia, Spain, Sweden, Turkey, and Serbia. 
Results of the Systems. Statistics of 
Production from 1901 to 1913 

THE EUROPEAN SYSTEMS 

In Europe no public land remains, that is to say, land which 
can be purchased from the government as may be done in the 
United States, Canada, Australia, and throughout much of 
Central and South America. This has been the condition for 
many centuries. In Russia, Austria, Germany, and probably in 
several other of the nations, the hereditary rulers are vast landed 
proprietors, and much of their holding can probably be con- 
sidered as State land, and will doubtless become so when their 
era passes away. * In consequence of these conditions the mining 
laws in force are only of the kind that have been found necessary 
to compel land owners to allow prospecting on their property, 
and when a discovery is made to give the discoverer or his assigns 
the right to mine. This has been attempted in various ways, and 
has met with varying degrees of success. At the time of the 
break-up of the Roman Empire the doctrine that the surface 
owner was also the exclusive owner of everything under his tract 
had become firmly established, and this view is still rigidly main- 
tained in Great Britain and has been transplanted to the United 
States and Canada. On the Continent it passed away early in 
the nineteenth century, under the intellectual lead of France. 
In its place was installed the doctrine that undiscovered mineral 

212 



EUROPEAN SYSTEMS OF MINING LAW 213 

was "res nullus," and hence belonged to the body politic or the 
ruling sovereign, in whom resided the right to make concessions 
thereof, in accordance with legislation enacted by Parliaments, 
or decrees promulgated by autocrats. These generally have 
taken the form of long term grants, by which the authorities 
have disposed of the mining rights to those who first applied for 
them after making a discovery, leaving the concessionaire to 
negotiate with the soil owner if possible for such surface ground 
as might be needed to carry on operations properly. In addi- 
tion, in several States, the government is itself a large operator 
of mines. 

Under such conditions there is naturally very little scope for 
the activities of prospecting. New discoveries are rare occur- 
rences. Mining is everywhere regarded as a business requiring 
the outlay of large capital and the guidance of high technical 
knowledge and experience. Excluding coal, mineral oil, iron and 
salt, the mineral production of Europe is small as compared with 
that of other grand divisions of the world. Nearly all of the 
metal recovered annually comes from mining districts and mines 
that have been known for hundreds and even thousands of years, 
having been discovered in those far off days when the population 
was relatively sparse, settlements few and far between, and un- 
occupied land abundant. 

The digests that follow will be found interesting and instruc- 
tive. That there are yet vast undiscovered mineral resources in 
Europe is confidently believed by those who are best acquainted 
with its general geology. These cannot become available until 
discovered. They will not be brought to light by scientists or 
capitalists. It is doubtful if the business of prospecting will 
revive until great changes have occurred in social as well as 
political conditions. A realization of the " impasse" that exists 
especially in Great Britain, may lead to an understanding of that 
which might in due time be reached in our own country if mean- 
time the laws in regard to real estate are not fundamentally 
modified. 



214 INTERNATIONAL MINING LAW 

AUSTRIA-HUNGARY 

(Law of May 23rd, 1854) 

Prospecting, even by the surface owner on his own ground, is 
illegal without a permit from the authorities, under the doctrine 
that all undersurface mineral substances belong to the State. 
Permits, however, are freely issued at nominal cost, good 'for a 
year and renewable thereafter from year to year indefinitely, 
but are not exclusive, and carry no rights beyond that of surface 
inspection on privately owned land. An exclusive right to de- 
velop and explore underground, called a "Freischurf," can be 
obtained for a circular tract with a diameter of not more than 
half a mile, by the planting of a notification stake at its center, 
followed by immediate notice to the Director of the Department 
of Mines, and formal application in writing for the area so de- 
limited. This is recognized and protected by the authorities so 
long as they continue satisfied that intelligent and energetic ex- 
ploring and developing work is in progress, and after registra- 
tion the temporary title so inaugurated is transferable. 

Within the tract thus held the explorer may at any time during 
the legal period of his occupancy, claim the preferential right to 
a permanent mining area, provided he is able to satisfy the 
authorities that a new occurrence of valuable mineral has been 
found by him within its lines, and that it can be worked at a 
profit with the means at his command. The unit claim is a 
tract enclosing about 10 acres of surface, placed as desired by the 
concessionaire so long as it is wholly within the limits of his 
prospecting area. With it goes the right to produce and realize 
upon the value of all mineral substances found vertically beneath, 
and without further obligations of any kind to the government, 
except the usual forms of taxation, or to the surface owner. Nine 
of these units may be combined into one group (18 in the case of 
a coal mine) and any desired number of such groups may be 
legally located and held by an individual or company by follow- 
ing the procedure outlined. Maintenance requirements consist 
in practically continuous work to the satisfaction of the Depart- 
ment of Mines. 



EUROPEAN SYSTEMS OF MINING LAW 215 

The latter also will grant to the first applicant a right to oper- 
ate alluvial deposits lying above the surface of the bed rock, upon 
any area not already occupied by an underground mining fran- 
chise, or by public or private buildings, or other surface improve- 
ments, the size, term, and other details of which are wholly 
matters of negotiation between the applicant and the authorities. 

In all cases the surface owner has the right to claim indemnity 
for damages of all kinds resulting from the operations of the 
miner, and for the loss of the use of the land necessarily employed 
by him for buildings, dumps, beneficiating works, and other 
proper mining activities; and under certain exceptional circum- 
stances he may compel him to purchase or pay rent on such areas, 
if, in the opinion of the authorities, no other method of indemni- 
fication would seem equally just. 

FRANCE 

(Law of April 13th, 1810, as amended April 27th, 1838, January 16th, 1840, 
May 9th, 1866, July 27th, 1880, and January 23rd, 1907) 

Mineral substances of all kinds are divided into three classes, 
called respectively Mines, Placers, and Quarries. 

Mines. — Combustibles (coal, oil and natural gas); ores of the 
Metals when occurring in rock in place; deposits of sulphur, 
alum, rock salt, baryta, fluorspar and in general all other minerals 
usually found in bodies which extend into and below the surface 
of the bed rock. 

Placers. — Metalliferous alluvials, and all desirable minerals 
(except Quarries) occurring in the surface soil as parts of it, and 
of its nature, and not extending from it into and below the surface 
of the bed rock. 

Quarries. — Building stone, limestone, peat, clay, and analogous 
substances that may be operated by uncovered excavations. 

Materials of the first class belong exclusively to the State, and 
may be searched for and worked only under the provisions of the 
law. Placers and quarries belong to the owner of the surface, 
but all operations thereon may be conducted only with the 
knowledge and under the supervision of the authorities. 

15 



216 INTERNATIONAL MINING LAW 

Prospecting is not free; a permit must be obtained from the 
government, and also the permission of the soil owner; but the 
latter may prospect without a permit on his own land, or enter 
into arrangements with another to do so. But in both cases the 
owner must first notify the authorities of his intentions. When it 
is desired to explore on property where the owner will not volun- 
tarily give permission, a special permit can be obtained from the 
Department of Mines. 

No form of prospecting permit conveys the right to remove and 
realize upon ore found, nor to search for other substances than 
those specifically mentioned in the document. Nor are these 
permits transferable. Further, they are issued under the 
general theory that within a reasonable time after a discovery 
has been made the holder will apply for a grant or concession for 
the territory believed to be valuable. If, however, before doing 
so, he desires to remove and realize upon some of the material 
found, for the purpose of ascertaining its value in bulk, or for 
other legitimate purposes having a bearing on the application for 
a concession, a permit authorizing such removal and sale will be 
granted by the Prefet of the Department. All prospecting 
operations are at all times under the surveillance of the 
authorities. 

To obtain a concession for mining purposes an application must 
be made to the Prefet giving the name and address of the appli- 
cant, the area of ground sought and its situation as displayed on a 
map made to a scale of 1 to 10,000 at the cost of the applicant. 
This, when presented, is signed, dated and recorded, and a receipt 
given for it. Any number of such applications, made by any 
number of individuals as well as by the discoverer, may be filed, 
and will be considered. Priority of filing, even by the discoverer, 
gives no preferential rights, and the government reserves the 
right to reject all or to select any one of them. But if the con- 
cession is granted to any one but the discoverer, the latter must 
be suitably indemnified to the satisfaction of the authorities for 
both his labor and costs, and in addition, in proportion to the 
importance of his "find," by the concessionaire. The latter 



EUROPEAN SYSTEMS OF MINING LAW 217 

must satisfy the government as to his capability to operate econo- 
mically and with sufficient capital. A deposit of cash to an 
amount set by the Preset must then be made, to cover the costs 
of investigation of title, verification of the map, advertising, etc. 

Upon the acceptance of an application a notice describing the 
area applied for is posted for two months in the office of the 
Preset, and a copy of it published for 30 days in the Official 
Gazette, and also in one of the public papers of the vicinity if 
there are any. During this latter term all objections to the grant- 
ing of the concession must be formally lodged with the Prefet. 
At its end all the papers go to the Minister of Public Works for 
final consideration. This official has the right finally to reject 
if, in his opinion, the payability of the property has not been 
sufficiently demonstrated. If granted, a decree to that effect 
is published, and the claimant is formally placed in physical 
possession of the ground. 

The right thus initiated covers only under-soil operations. In 
the eyes of the law it is real estate, transferable — together with 
all its legitimate surface appurtenances, such as buildings, 
machinery, etc. — by common law deed, but all such deeds must 
be approved by the Department of Mines and carry the signa- 
ture of its Chief to be valid. It includes no surface rights. Such 
as are necessary must be secured from the surface owner, but 
the law provides means by which these may be obtained on 
reasonable terms. If the ground is rented the owner cannot 
claim more than double the net revenue that he can show it has 
been yielding. If purchased, the price cannot exceed double its 
value as appraised for taxation. Under any and all arrange- 
ments, however, the owner can insist upon adequate support 
for his surface in all its parts, unless this right is specifically 
waived. 

Mining grants are good only for the substance or substances 
listed therein, but when unlisted substances are found in such 
chemical or mechanical combination with listed ones as to make 
their simultaneous production and recovery an economical neces- 
sity, a permit will be given allowing their extraction. 



218 INTERNATIONAL MINING LAW 

Concessionaires must monument their ground and maintain 
the monuments in good repair. When these are an injury to the 
surface owner he must be properly indemnified. Shafts cannot 
be sunk or levels driven nearer than 50 meters to buildings with- 
out first giving their owner 30 days' notice, during which term 
the latter must make formal demand through the courts, if 
necessary, for security for possible damages. 

Mining grants cannot be united without the permission of the 
Council of State. Nor may they be abandoned without giving 
notice of the intent to the Prefet and awaiting his permission, 
which is given only after due formalities for the protection of 
creditors, and an expert examination and survey of the mine. 

The government claims an annual ground rent of one franc 1 
per hectare of area, except in the case of coal mines when this 
tax is reduced to 30 centimes per hectare. But this impost 
does not begin until January 1st of the third calendar year of 
possession, the first two years being free. In addition, a royalty 
of 6% of the net profits must be paid each year for the business 
of the previous year. 

The area of a concession and its period are entirely matters of 
negotiation between the applicant and the authorities; also the 
matter of renewals and the methods to be adopted in operation. 
In these affairs the surface owner has no voice, nor can he make 
any claims for rental or royalty. 

Forfeiture of grants may be declared by the authorities when- 
ever rentals or royalties are not promptly paid, if the orders of 
the Department of Mines concerning methods of operation are 
not satisfactorily executed, or if production is restricted to an 
extent prejudicial to the public welfare. A forfeited property 
cannot be granted again to the same concessionaire. 

Soil owners who wish to operate placer deposits or quarries 
upon their own ground, or who desire to give such privileges to 
others, must take out government licenses, and all operations 
must then be conducted under the general surveillance of the 

ir The franc is worth 19.3 cents in U. S. gold. It is divided into 100 
centimes. Hence. 5 centimes are nearly the equivalent of one cent. 



EUROPEAN SYSTEMS OF MINING LAW 219 

Department of Mines, and under the general laws relating to the 
safety of workmen and to sanitation. 

GERMANY 

There are two mining laws in force in the German Empire, one 
of which governs the industry in the kingdom of Prussia, and the 
other in the kingdom of Saxony. 

The Prussian Law 
(Law of June 24th, 1865, as amended July 1st, 1905, and June 18th, 1907) 

Prospecting is free for all under-soil mineral substances (which 
are held to be exclusive State property), with the exception that 
in two of the small States the local governments have reserved 
to themselves the right to search for and mine coal beds and de- 
posits of certain salts. But in both these cases the right exists 
to delegate these privileges to others. 

If a surface owner refuses to allow prospecting on his property, 
the explorer, on applying to the authorities, can secure the desired 
right upon an area and for a term agreed upon between them 
and himself, the sole consideration being the execution of a bond 
in such an amount as, in the opinion of the government, will 
secure the owner of the surface suitable compensation for damage 
that may result from the operations. 

When a new ore vein or body is discovered by such an explorer, 
within the prospecting area granted to him, he can obtain mining 
privileges on the same by written application made to the authori- 
ties within a week of the date of discovery. In case of failure to 
do this, the franchise will be given to the first applicant there- 
after who is able to prove that the discovery is a new one, that it 
was legitimately effected, and that it is of sufficient importance to 
warrant the expectation that it can be made a profitable or at 
least a self-sustaining business venture. 

Surface owners cannot claim any interest in mineral values 
recovered from under the surface soil of their property, and must 
allow to the mining operator such use of the surface as may be 



220 INTERNATIONAL MINING LAW 

reasonably necessary. On his part the miner must pay a proper 
rental, or purchase the ground outright at a fair valuation. 

However, the law gives to the authorities the right to refuse 
arbitrarily an application for prospecting or mining rights, or 
both, whenever in their opinion it would be injurious to the pub- 
lic order, health, or safety to grant them. 

The Saxon Law 
(Law of August 31st, 1910) 

The State claims exclusive ownership of all ores of the metals 
except bog iron, of deposits of salt and its associated minerals, of 
salt springs, and of all radio-active substances. The right of 
searching for and of obtaining mining privileges on deposits of 
the first class (the metals) is free to all. The State reserves the 
right to explore for and work the others, and is empowered to 
delegate this right to individuals and corporations. Goal and 
other combustibles belong to owners of the soil, also quarries and 
any other mineral substances occurring in the surface soil or 
lying above or upon the bed rock. 

Anyone who desires to inaugurate a search for metals on prop- 
erty owned by another may secure permission to do so by being 
the first applicant to the authorities for the privilege. The 
maximum size of tract that will be allowed for the purpose meas- 
ures about 100 acres, and the term permitted is one year, with an 
extension of six months for good cause shown. Any number of 
such prospecting areas will be allotted to an applicant, so long as 
each one is separated from any of the others by a distance of not 
less than about 6000 feet. Before application is made to the 
authorities for the permit — which costs only a nominal sum — it is 
customary to ask the surface owner for the right. If it is refused, 
the authorities will authorize the work and its continuance to the 
extent that they may deem advisable, so long as it promises to 
bring about some useful result. The soil owner can claim indem- 
nity for any damage that may take place. If ore is found and the 
discoverer thereof applies to the authorities within the term of 



EUROPEAN SYSTEMS OF MINING LAW 221 

his permit, he will be given a working license. If he fails to make 
the application the franchise will be given to the first applicant 
thereafter who is able to demonstrate the existence of the ore to 
the authorities. The concession is not a perpetual one, but is 
continued from year to year as long as the Department of Mines 
remains satisfied with the operations of the concessionaire. No 
royalties are claimed by the government on the products recov- 
ered, nor rental for the surface occupied. The soil owner, how- 
ever, can exact a fair compensation for the acreage used. 

GREAT BRITAIN 

In the British Isles the owner of the surface is legally also the 
owner of all substances vertically under it indefinitely, except as 
to gold and silver, which are nominally the property of the 
Crown, though this right is no longer insisted upon. All other 
metals and minerals may be sold, leased, or otherwise conveyed at 
the will of the owner by the ordinary documents of conveyance. 
There is therefore no mining law in the meaning of the term 
elsewhere, and the State has nothing to do with the mining 
industry except in the matter of settling controversies between 
owners, or in providing for such easements as are necessary for 
rights of way for railroads, vehicle roads, and canals. Mines are 
subjected only to the usual land and income taxes, even in the 
case of the few and unimportant gold and silver producers that 
have, in recent years, been discovered and operated. 

No legislation whatever relating to the industry occurred until 
the year 1850, and this had to do only with the contractual rela- 
tions between owners and leasers of mines, providing measures 
of arbitration in case of disputes. Subsequently, in 1872, 1887, 
and 1911 laws of a police and sanitary nature were enacted. 

The tin mines of Cornwall and Devonshire, the coal and iron 
mines of Gloucestershire, and the lead mines of Derbyshire are 
operated today under very ancient customs, not very different 
from those that were in force in Germany and other parts of the 
continent during the twelfth and thirteenth centuries. In Corn- 



222 INTERNATIONAL MINING LAW 

wall and Devon an institution called the Stannary Court, 1 the 
origin of. which is lost in antiquity, exercised a limited degree 
of control between surface owners and lessees, the principal 
effect of which is to compel the former either to work the 
mines themselves, or to allow others to do so upon the payment 
of a reasonable rent or royalty. In Derbyshire there still exists 
a somewhat similar organization, by the acts and decisions of 
which the very ancient right of following the veins of the region 
on their dip outside of surface side lines, in accordance with the 
principles in force in central Europe during and before the fif- 
teenth and sixteenth centuries, has been preserved to the locality. 

ITALY 

There are four varieties of mining legislation in effect in this 
kingdom. Although in fundamentals they are much alike, yet '. 
the differences are such as to make it necessary to consider- each 
law by itself. 

(Law of August 9th, 1808, governing the industry in the states of Modena ' 

and Reggio) 

Anyone may carry on prospecting work at any one place and 
on any unused land, regardless of its ownership, for a continuous 
period not to exceed six months, at the end of which term if it is 
desired to continue exploration a defined area must be applied 
for. This will be allowed by the authorities if, after formal inves- 
tigation, it seems to them advisable to do so. In deciding this 
point, if the application is for a new ore body in a mine at one 
time worked and then abandoned, the right to reopen and operate 
is first offered to the soil owner, who has three months in which to - 
consider the proposition. If he fails to accept, the property is 
turned over to the applicant who has been prospecting it. If he 
accepts, he is under legal obligations to compensate the discoverer 
in a manner and to an extent satisfactory to the authorities. If 
the application is for an entirely new ore occurrence the grant will 

1 Abolished 1896 and jurisdiction given to County Courts. 



EUROPEAN SYSTEMS OF MINING LAW 223 

be issued to the first discoverer of it, if he is able to satisfy the 
authorities that he can command the means to open and operate 
it properly. If he cannot, it goes to the next applicant, who must 
indemnify the discoverer to a reasonable extent (in the opinion 
of the authorities) for the expenses incurred and for the fact of the 
discovery. 

The maximum term of a mining grant is 50 years. Its area 
and conditions are matters of negotiation between the applicant 
and the- government. The papers evidencing the concession 
must state the substances that are expected to be recovered, and 
all matters of rental to the soil owner or royalty to the State are 
based upon these statements. If other desirable substances are 
found and recovered, the concessionaire has a preferential right 
to them if he accepts the terms which the authorities set in con- 
sideration of the additional grant. 

(Law of November 20th, 1859, governing the industry in the States of 
Piedmont, Sardinia, and Lombardy) 

No prospecting for mineral substances is allowable, even by a 
surface owner on his own ground, without written governmental 
permit. But such a document, covering exclusive prospecting 
rights on a defined area (size and conditions of same being mat- 
ters of negotiation), will be granted to the first applicant whose 
ability to conduct operations is satisfactory to the authorities. 
If the explorations result in the discovery of a new ore body or 
occurrence, the Minister of Public Works makes announcement of 
the fact by advertisement, which has the effect of giving to the dis- 
coverer the preferential right to claim a mining grant of the prem- 
ises if the claim is made within six months of the date of the 
advertisement. In case of failure to do so the government is 
empowered to confer the grant on the first applicant thereafter 
who will accept it under the conditions of paying a proper con- 
sideration to the discoverer. The amount of this payment is 
arranged between the parties in interest if possible, otherwise it is 
determined by the Department of Mines. Whoever obtains the 
grant must first satisfy the authorities that he can command the 



224 INTERNATIONAL MINING LAW 

capital to develop and operate properly, and in accordance with 
good mining practice. 

This law is also known as the Royal Mining Law, and applies 
in all parts of Italy wherever there is no State law, as well as in 
Piedmont, Sardinia, and Lombardy. 

(Law of May 3rd, 1847, governing the industry only in Lucca) 

This law is in all essentials similar to that of Piedmont, Sar- 
dinia, and Lombardy, except that if the actual discoverer cannot 
qualify to the satisfaction of the authorities, then the owner of 
the surface has the next right to claim the premises. In the event 
of his failure to do so, or to qualify, the right passes to the first 
outside applicant who can comply with the conditions established 
by the authorities, which includes proper compensation to the 
discoverer. 

(Law of June 21st, 1852, governing the industry only in Parma) 

In this state the quarries as well as the underground mines 
are held to be the property of the Nation. No license is required 
to prospect, but only a very limited amount of exploratory 
work is allowed without special permission from the government, 
and when a discovery is made the authorities must be advised 
of the fact within 15 days. The locality is then subjected to 
inspection by experts, whose report determines whether the 
property shall be taken over for operation by the State or be 
conceded to others. In the first case the discoverer is indemni- 
fied for his work, and suitably rewarded for his discovery. Under 
the other decision the mining right will be awarded to the dis- 
coverer, if he can qualify to the satisfaction of the authorities; 
if not, it is next offered to the surface owner. If he declines, 
or is unable to qualify, the government passes it to the first 
satisfactory applicant. Whoever secures the grant must care 
properly for the interests of the discoverer. The grant when 
given is for an agreed area and time, and is renewable according 
to its terms, but cannot be made perpetual. It conveys the 
right to recover and realize upon all mineral substances found 



EUROPEAN SYSTEMS OF MINING LAW 225 

vertically under its surface area. No rental can be collected 
from the grantee by the soil owner. 

THE TWO SICILIES 

In these States the surface owner is also the exclusive proprie- 
tor of the undersoil. He may explore for and work mines on his 
own ground without any obligation to the government. In 
case a mineral discovery is made on his premises by anyone else, 
he may take advantage of it himself after giving reasonable 
compensation and reward to the discoverer. If he does not do 
so within a given time after notification from the latter the State 
has the right to offer the property in one or more tracts, first 
to the discoverer, and next to the general public. In each case 
the recipient must pay to the soil owner an annual rental to be 
determined by the government. If the discoverer is not able 
to qualify financially, the opportunity passes to the first applicant 
who can satisfy the conditions set by the authorities, which 
include a set compensation to the discoverer. This may, at the 
option of the latter, take the form of a lump sum, or of an annual 
payment for a set term, or of a percentage of the gross or net 
profits of operation. The term and size of the grant and all 
other details are matters of negotiation between the authorities 
and the concessionaire. 

NORWAY 

(Law of July 14th, 1842, with amendments to date of January 1st, 1918) 

The State claims the exclusive ownership and control of 
minerals of all kinds occurring on or in government land, and of 
all found underneath the surface soil in rock in place on privately 
owned property. But metalliferous alluvial (placer deposits), 
and all other minerals found above the bed rock and in the surface 
soil of alienated land belong to the owner of the surface. 

Prospecting is not free. A permit is obtainable at any time 
without cost, good for one year, on application at the office of 
the local authority, but applies only in the district under the 
control of that officer. It permits search by excavation on public 



226 INTERNATIONAL MINING LAW 

or private land except in the public roads, parks or other like 
reservations. Explosives may be employed, but special regula- 
tions are prescribed for their use within 400 feet of a building. 
When the operations are to be carried on upon alienated land an 
additional permit must be obtained from the authorities, to be 
presented to the owner, and security given to the satisfaction of 
the local chief official for all damages that may result. All 
excavations must be fenced, and if abandoned must either be 
filled up or surrounded by a substantial stone wall. 

To secure prior rights to a discovery the discoverer must give 
written notice in duplicate to the authorities within 18 months 
from date of discovery, and furnish sample of the mineral found. 
The surface owner has a right to claim a one-tenth interest in 
the adventure, and can demand that 10% of all material raised 
be left on the premises until an agreement has been made with 
him. But this agreement must be consummated and recorded 
within six months after production begins. If not, the surface 
owner has the right within the following three months to dispose 
of his 10% interest at public auction if he can. 

The size of claim for well defined lodes or veins is 900 feet in 
length by 42 feet in width; for all other kinds of deposits, a tract 
1500 feet square. No royalties or ground rent are demanded by 
the government, or allowed to be claimed by the surface owner. 
If the claim is located on government land full surface rights go 
with the underground franchise. If on private land, the miner 
can claim such surface area as he may reasonably need for 
economical operation, but must buy or lease it from the surface 
owner on terms set by the authorities. Before any ore can be 
removed and realized upon, the claim must be surveyed by a 
government engineer at the expense of the claimant, monu- 
mented at the places indicated by the engineer, and registered. 

PORTUGAL 

(Law of February 26th, 1892, with amendments to January 1st, 1917) 

The State claims the exclusive ownership of all deposits of 
ores (in rock in place) of the metals, combustibles, and asphalts 



EUROPEAN SYSTEMS OF MINING LAW 227 

(except peat), salines, graphite, and phosphates, wherever 
occurring within its borders, and will grant rights to work the 
same under the provisions of the law. Also it claims the sole 
property of all mineral springs, but the privilege of utilizing 
them may be obtained under a special law. Placer deposits 
of all kinds occurring on the public domain, so long as they 
exist in the surface soil only, may be operated by anyone, without 
the necessity of applying for a government permit or concession, 
if the methods of operation are of a primitive nature. But if it 
is desired to install dredging or hydraulic plants or any other 
mechanical devices, a permit must be applied for and a con- 
cession secured. Bog iron ore may also be freely worked by any- 
one, but if the ore is to be reduced to metal a concession is 
necessary. Quarries and placer deposits on alienated land belong 
to the surface owner, and may be worked by him or with his 
permission without concession. 

Materials of general public use and need like brick and pottery 
clay, when on alienated land, if not operated by the soil owner or 
with his consent, may be commandeered by the government 
and offered publicly for concession. Peat belongs to the soil 
owner, but can be worked by him only by virtue of a government 
license. No metallurgical works of any kind may be installed 
without government knowledge and permission. 

Prospecting is free to natives and aliens on both the public 
domain and privately owned land, so long as it consists merely of 
surface inspection and the digging of shallow pits. When a 
discovery is made the discoverer must at once notify the chief 
authority of the district in which it lies, giving him a sample of 
the ore found, together with a full and accurate description of its 
situation, and the name and address of the surface owner, if any. 
If on examination by government mining engineers the state- 
ments are in the main verified, the applicant is given a permit 
granting exclusive prospecting rights on a tract of land in the 
shape of a circle with the place of discovery at its center. In 
the case of metals and phosphates the radius of this circle is 560 
meters, and for all other substances 707 meters. This permit 



228 INTERNATIONAL MINING LAW 

is transferable by endorsement and acknowledgment of the 
signature before a notary. It is good for 12 months and is not 
renewable. It confers the right to explore to the depth of 20 
meters by a shaft, or 40 meters by a drill hole, and by drift or 
levels up to 25 meters of length, or by surface trenches not over 
five meters deep. But the holder is not allowed to remove or 
sell any ore found. During its term he must apply for a defined 
area within his circle or forfeit his discovery right. No excava- 
ting is allowed within 30 meters of a building, railway, public 
road, canal, or public fountain, nor within 1400 meters of forti- 
fications, nor under orchards, gardens, or irrigated lands. But 
it is allowed on other cultivated lands when proper security is 
given for possible damages. 

The preliminary exploration work having been accomplished, 
and the results proving satisfactory to the explorer, he applies 
to the authorities for a document called a " discovery right," 
accompanying the application with a deposit of 130,000 reis 1 
to cover the costs of title investigation, survey, advertising, etc., 
all of which are done under the supervision of the government. 
The minimum area allowable for a claim is 10 hectares, and the 
maximum 50 hectares in the case of a metal or phosphates, and 
100 hectares for all other substances. In shape the claim may be 
a circle, a square, or a rectangle, at the option of the claimant, 
and under certain conditions a polygon. The place of discovery 
must be at its center, or as nearly so as possible. Publication 
during 70 days in the Official Gazette and posting during eight 
days in the office of the chief of the district follows, and during 
this period all objections to the claim must be filed. If the 
proceedings are completed without the presentation of any ad- 
verses, or when such as may be presented are successfully con- 
troverted in open court, the applicant is given a " Certificate of 
Discovery," upon which the authorities set a price, based not 
only upon the work done by the discoverer, but upon the 

1 Approximately 2000 Portuguese reis are the equivalent of $1.00 U. S. 
gold. Hence 130,000 reis correspond to $65; 40,000 to $20; 500 to 25 cents 
and 300 to 15 cents. 



EUROPEAN SYSTEMS OF MINING LAW 229 

importance of the discovery in the opinion of the government 
engineers. 

At any time during the following six months it is the right of 
the holder of such a document to apply to the authorities for a 
concession, which must be granted to him if he can comply with 
the conditions required in such grants. These, in the main, are 
to prove the ability to guarantee to the government that the 
property shall be developed and operated with ample capital and 
skill. If the discoverer or his assigns cannot do this the claim is 
offered to the general public, and disposed of to that bidder who 
makes the most satisfactory tender for it. This party, in taking 
possession, is required to pay to the holder of the discovery cer- 
tificate the price set by the government, in cash, or to liquidate 
the claim in some other way. 

The concession, when granted, is perpetual, so long as the 
concessionaire pays the direct and proportional taxes promptly, 
and faithfully observes all the other conditions specified in it. 
These include indemnity to the surface owner (if it is on private 
land) for all damages resulting from operations, and keeping on 
deposit with the government the sum of 40,000 reis as security 
for any future injury. Active work must begin within three 
months of the date of the concession, and thereafter be con- 
tinuous to an extent satisfactory to the authorities. A conces- 
sion conveys the right to operate only for that kind or class of 
substance that has been specifically described in the " certifi- 
cate of discovery" upon which it is based, together with such 
others as may be so intimately combined with it as to render 
their simultaneous extraction an economic necessity. No 
laborers under 14 years of age may be employed in underground 
work. 

A concession cannot be sold, either in whole or in part, without 
the written consent of the Department of Mines. 

Government taxes are as follows: a fixed tax of 500 reis per 
hectare per annum for metals and phosphates, and 300 reis for all 
other substances; a proportional tax of 2% of the gross value of 
the product at the mine, excepting in the case of pyrite and man- 



230 INTERNATIONAL MINING LAW 

ganese oxide, when the tax is 2}4%- But iron ore, if reduced 
to the metal in the country, is free from this tax. 

Concessionaires can claim the exclusive usage of any part or 
the whole of the surface within the lines of their concession, but 
must pay to the surface owner (if any) a rental for the area used, 
and a royalty equal to one-third of the proportional tax levied 
by the government on the output. The amount of the rental is 
arranged amicably if possible between the interested parties, 
but if that proves to be impossible the authorities will set its 
amount. The concession, as delimited on the surface by monu- 
ments set by the government engineer, is bounded under the 
surface by vertical planes passing through the surface lines, no 
extralateral rights of any kind being allowed. 

RUSSIA 

In this great country, excepting in Finland and Russian Poland, 
the fundamental principle of the mining law is the doctrine that 
the owner of the surface is also the owner of all substances 
vertically under it. But the State, which is a very large owner 
of land, offers the enjoyment of underground mining privileges 
to all who apply for it, and on generally favorable terms. In 
Finland the mining regulations are very similar in detail to 
those of Sweden, and in Russian Poland to those of the kingdom 
of Prussia. 

In the balance of Russia (including Siberia) surface owners 
may freely explore for minerals on their own land, under no 
obligations to the government other than that of giving notice 
of the discovery of new ore bodies and occurrences, if they are 
of importance enough to warrant development. With the same 
obligations, owners can sell or lease their underground rights. 

On State lands no license is required by one who simply inspects 
the surface for indications of mineral and does no digging, except- 
ing in the case of those who are exploring for gold and amber, 
where a permit is strictly required. Its cost is nominal, but 
it is given only to individuals who are certified to the authorities 
as reliable. In all other cases, as soon as the prospector desires 



EUROPEAN SYSTEMS OF MINING LAW 231 

to inaugurate development work of any serious extent, and wishes 
exclusive right at the place selected, he may obtain the same by 
application to the authorities for a definite area and for a definite 
time. These are usually granted, and under reasonably fair con- 
ditions, and the franchise is assignable. 

The holder or assignee of such a prospecting tract has the 
exclusive right, during its term, to demand from the government 
a concession for such part — or all — of it, as he may desire. When 
received, it takes the form of a perpetual grant, depending for its 
maintenance on reasonably continuous and energetic exploration 
work, in default of which the State may at any time resume pos- 
session. It carries the right to the use of the surface for all 
legitimate mining purposes, except for the establishment of 
works of all kind for the treatment of the ore. When space for 
such installation is needed it must be purchased, and on such 
tracts only surface rights are given. 

SPAIN 

(Law of July 6th, 1859, with amendments to date of January 1st, 1917) 

For the purposes of the law all mineral substances are divided 
into three classes, as follows: 

Class 1. — Brick clay, slate, grindstones, basalt, limestone, 
gypsum, sand, marl, and in general, all substances that are 
quarried. These, when on public land, are open to appropria- 
tion by anyone, but when on privately owned land belong to 
the soil owner, and may not be taken from him. But, when such 
deposits are worked by the soil owner, they must be operated in 
accordance with the provisions and regulations of the law as 
regards the safety of employees and matters of sanitation. 

Class 2. — Metalliferous alluvials, bog iron, emery, ochres, 
abandoned mine and slag dumps, peat, pyrites, alum, magnesite, 
fuller's earth, phosphates, baryta, fluorspar, soapstone, kaolin, 
asbestos, pumice and potter's clay. These, when on the public 
domain, are open to appropriation, but when on alienated land 
are obtainable only through the permission of the Governor of 
the Province in which they lie. In the case of potter's clay, if 

16 



232 INTERNATIONAL MINING LAW 

the owner refuses to produce it, the Government reserves the 
right to expropriate and lease the deposit. 

Class 3. — Metalliferous deposits of all kinds existing in rock in 
place. Also coal, asphalt, petroleum and natural gas, graphite, 
salines, copperas, sulphur, and precious stones. These belong 
to the Nation and cannot be sold, but are open to appropriation 
under lease by anyone, whether situated on the public domain 
or upon alienated land. 

When any doubt exists as to the class to which a mineral sub- 
stance should belong, the question is decided by the Governor of 
the Province under the advice of the Bureau of Mines. 

Prospecting is free except within 40 meters of public buildings, 
highways, bridges, ditches, fountains and reservoirs, or within 
20 meters of a public railroad, or 15 meters of a private railroad, 
or in the vicinity of public baths and mineral springs, or within 
1400 meters of fortifications or other government military reserve. 

Prospecting excavations may not exceed a length and width of 
two meters and a depth of one meter, and when they reveal 
nothing, and are to be abandoned by the digger thereof, they 
must be filled up. 

Gravel deposits carrying gold, tinstone, precious stones, or 
other valuable minerals or metals, may be worked by anyone, 
without the formality of filing claims, so long as the operations 
are of a primitive nature, and are conducted by working indi- 
viduals. The same applies to ochres, so long as the mineral is 
not smelted. 

Prospectors may secure exclusive rights to test selected areas 
of reasonable size by deep shafts or boreholes, by special applica- 
tion to the government. The terms and conditions of such 
grants are wholly a matter of negotiation with the authorities. 
Before abandoning a grant of this kind the government must 
be notified of the intent at least five days before the act. 

The following areas are not open to prospecting: the mercury 
district of Almaden, the copper district of Rio Tinto, the lead 
districts of Linares and Falset, the sulphur districts of Hellin 
and Benamaurel, the graphite district of Marbella, the iron 



EUROPEAN SYSTEMS OF MINING LAW 233 

districts of Asturia and Nivarre, the vicinity of Trubia in the 
province of Oviedo, and all salt producing districts at present 
in operation. 

The unit lode mining claim, which applies to all mineral 
deposits of that nature, is a rectangle measuring 300 by 200 
meters, laid out on a horizontal plane and bounded in depth by 
vertical planes passing through its side lines. No extralateral 
rights are allowed. Such claims, except when located on the 
public domain, do not carry surface rights. But when located 
and approved on private land, the claimant acquires a natural 
preferential right to such parts of its surface as may be required 
for all proper mining operations, but must arrange with the sur- 
face owner for what is needed. Any number of these may be 
acquired by individuals or companies, but the former may apply 
for only two and the latter for only four in one formal application. 

The unit claim for iron, coal, peat, asphalt, sulphur, rock salt, 
and all substances found in rock in place but not in veins, is 
500 by 300 meters. 

The unit alluvial claim, applicable to all mineral deposits in 
the surface soil and above the bed rock, is 200 by 300 meters, 
taken in any desired shape not smaller than a series of adjoining 
squares each of which measures 20 meters on the sides. In 
the case of this class of claims an individual may unite four and 
a company eight in one application. 

A discovery of mineral is a necessary prerequisite to the filing 
of an application for a claim of any kind. No claim may be less 
than four hectares in area. 

The procedure for acquiring mining property is practically the 
same for all classes of claims. A discovery having been made 
the discoverer decides upon the area he wishes, and plants pro- 
visional stakes or monuments, noting the position of each with 
respect to any landmark in the vicinity or any other occupied 
ground. Then, either personally or by a duly authorized agent, 
he makes application for the ground directly to the Governor 
of the Province in which it lies. The government provides 
blank forms for all classes of applications, and other necessary 



234 INTERNATIONAL MINING LAW 

documents connected therewith. These are printed upon 
stamped paper, the stamps being of various denominations, and 
the indicated value of those used by the applicant must be paid 
for by him. They call for detailed descriptions of the position, 
extent and surroundings of the area desired, ali of which informa- 
tion the applicant must furnish. The blank having been filled 
out, it is signed by the applicant and witnessed, and is started 
upon its official journey through the government offices having 
such matters in charge. If the ground desired is on the public 
domain — of which naturally there is little left — a conclusion is 
reached within a month or two. But if it is on private land, as 
is generally the case, the journey takes from three to six months, 
according generally to the obstacles presented by the surface 
owner to the grant. Or, the latter may decide to work the ground 
himself, for which the law gives him a preferential right within a 
certain term. 

A fee of 150 pesetas (about $45) must accompany each applica- 
tion, and an additional amount if there are several applications, 
and if their combined area is in excess of 20 claims of any one 
class. The total must be at least 5% of the first year's rental, 
the other 95% being due and payable when the grant is allowed. 

While the application is under consideratior and being ad- 
vertised, no work can be done upon the ground, and when it is 
granted it gives the right to work for one class of mineral only. 
If the application is allowed the ground must then be accurately 
surveyed and properly monumented by a government engineer, 
whose charges are moderate, and these landmarks must be kept 
in good repair by the claimant. If, during the course of opera- 
tions, minerals are encountered other than the one for which 
mining privilege was asked in the application, the authorities 
must at once be advised of the incident so that the rate of royalty 
may be adjusted. ' 

Statistical reports of operations must be furnished to govern- 
ment officials whenever called for. 

Immediately upon the issuing of a mineral grant the document 
is registered, and the claimant is put in physical possession by 



EUROPEAN SYSTEMS OF MINING LAW 235 

the local alcalde. Thereafter conveyancing rights are complete, 
except for reserved minerals. 

Everyone engaged in mining must have a representative in the 
capital of the Province in which the property lies, unless he is 
himself a resident of the capital. 

The annual rental on an ordinary quartz or alluvial claim is 30 
crowns (about $15). For a coal claim it is 20 crowns; for slag 
heaps and old dumps it is 40 crowns per 40,000 square meters 
of surface in the claim; for prospecting claims, 10 crowns per 
claim of 60,000 square meters. No rental will be charged on 
iron claims until the year 1925. 

The government reserves the right to establish drainage areas, 
and to compel all claimholders therein to contribute to the cost 
of drainage in proportion to the area of their ground. All 
mines must have at least two exits, and all shafts substantial 
ladder ways. 

No fee simple title is given to any mineral land. The right of 
possession and usage, when an application is allowed, depends 
upon the payment of the annual rental and also upon the per- 
formance in good faith of at least 732 shifts of labor per unit 
claim per year, being the equivalent of four workmen for half 
the days of the year. In a group of claims all of this may be 
done at one or more points, at the option of the claimholder. 

When it is desired to abandon a registered mining property 
30 days' notice must be given to the authorities of the intent, 
and the claimant is held responsible until all debts are paid. 

Individuals or companies buying claims must, within 20 days 
from date of transfer, send a certified copy of the document to the 
authorities, together with the prescribed transfer fee, which 
varies with the consideration and the nature of the property sold. 

Export duties on metals or minerals may not be in excess of 
3% ad valorem. 

Tunnel rights for drainage, exploration, or working purposes 
are obtainable under reasonable conditions, with rights of way 
through claims along their line, and working rights on new veins 
discovered in driving them. 



236 INTERNATIONAL MINING LAW 

A royalty of 3% or less of the gross value of all minerals or 
metals produced and disposed of is payable by all producing 
mines. This tax is collected quarterly. 

SWEDEN 

(Law of May 16th, 1884) 

The State claims the exclusive ownership of all undersoil 
substances, and allows free prospecting everywhere to the extent, 
however, only of surface inspection, and the taking of assay 
samples. If it is desired to make excavations, a circular area 
with a diameter of about 600 feet must be selected, and appli- 
cation made for a digging permit thereon, which will be granted 
to the first applicant. If more than one application is made 
simultaneously for the same area, the permit is given to the one 
who can prove that he was the first discoverer upon it. In 
default of this a collective or partnership permit is issued. Under 
either, the holder must begin work in earnest and with suitable 
appliances within eight months, and maintain continuous and 
energetic labor thereafter during the balance of the term, which 
has a maximum length of three years. Before its expiration, 
if payable ore has been found and the concessionaire desires 
to continue possession, he must apply for a working permit, and 
may select from within his circular prospecting tract the largest 
possible rectangular tract that it will contain, and formally 
apply for working privileges thereon. All terms and conditions 
are matters of negotiation with the authorities. 

In this franchise, when secured, the soil owner is allowed by the 
law to participate (in expenses and profits) to the maximum extent 
of 50%, if he desires to do so, and if he gives notice to that effect 
to the government before the working permit is issued. 

TURKEY 

(Law of May 13th, 1915, with amendments to January 1st, 1917) 

For the purposes of the law all mineral substances are classified 
as follows: 



EUROPEAN SYSTEMS OF MINING LAW 237 

Class 1. — Those found underground in rock, in veins, lodes, 
beds or masses, or as replacements, segregations, etc. 

Class 2. — Those found above the bed rock in the surface soil, 
as all alluvial deposits and many earthy substances. 

Class 3. — Mineral springs. 

Class 4. — Quarries, which may be operated in the open. 

The government claims the exclusive ownership of mineral 
substances of all kinds, whether existing on the public domain or 
upon alienated land. The government will not sell its mineral 
rights, but will grant long term leases called " concessions/ ' in 
return for an annual occupation tax on area conceded, and a per- 
centage of the net profits. There are no such things as mining 
claims. When a tract of land is desired for mining purposes 
application must be made direct to the central government 
through the Minister of Mines, with whom the concession is 
arranged on such terms as seem to him advisable. The bargain 
thus struck, when ratified by the Sultan, or when left with him 
for consideration and not adversely acted upon within six months, 
becomes legally valid. 

Any land owner may freely prospect on his own land without 
license or other formality, but may not extract ore or realize on 
the same without first applying for and obtaining a concession. 

No prospecting is allowed on the public domain, nor on alien- 
ated land — except by the owner thereof — without a license. In 
addition, the holder of a license must obtain the consent of the 
owner before he can prospect on alienated land. If the owner is 
unreasonable in his demands appeal may be taken to the au- 
thorities, who will arrange for equitable terms. 

Application for a prospecting license must be made to the 
Governor General of the Province in which the land lies which 
it is desired to prospect, who will immediately allot to the appli- 
cant, provisionally, an exclusive area not to exceed 4000 hectares 
in area, upon which he can go to work at once if he chooses; but 
the authorities require six months in which to consider the 
proposition, and reserve the right to reject it within that term. 
If granted, the applicant must begin work in earnest within three 



238 INTERNATIONAL MINING LAW 

months from date of issue. The fee is 10 shillings, plus all the 
costs connected with the six months of investigation, which are 
heavy. The term of the permit is two years, with the right of 
an extension for an additional year, for good cause. During 
this period the holder has the right to mine and sell ore, after 
paying the appraised royalties on the same, and also may sell or 
mortgage his franchise. Samples of all valuable minerals found 
must be sent at once to the local authorities. 

Within the term of the license (or that of its extension) a 
concession must be applied for, if one is desired. To secure it 
application is made direct to the Minister of Mines. The 
applicant must give complete information about his prospect, 
accompanied by maps, samples of ore, etc., and must state the 
particular kind of ore it is expected to produce, and furnish the 
Minister with satisfactory evidence that the mine can be worked 
profitably, and that he can command sufficient capital for proper 
equipment, etc. The documents so compiled go first to the 
government engineer for examination and verification. A lump 
sum of money— as estimated by the Minister of Mines — to cover 
his travelling expenses and time must be deposited in advance. 
If the report of the Engineer is unfavorable the concession is 
refused. If favorable, publication of the application both 
locally and in the Government Gazette at the capital follows. 
If no objections are filed during that period the papers finally 
go to the Sultan, who approves or disapproves as he sees fit, or 
neglects altogether. The law allows a period of six months for his 
action. If within that term he does not disapprove then the 
Minister of Mines must execute a grant in favor of the applicant. 
The term allowed is anywhere from 40 to 99 years, and the 
final fee ranges from £50 to £200, according to the estimated 
importance of the concession. The rental is £1 per hectare 
per annum, payable in advance, and due thereafter on or before 
March 1st of each year. In addition, a royalty on the net profits 
is demanded, payable as soon as the product is converted into 
money. This may range in amount to from 3% to 20%, accord- 
ing to the nature and value of the mineral. 



EUROPEAN SYSTEMS OF MINING LAW 239 

Concessionaires must begin work within one year from the 
date of issue of the grant, and thereafter must continue work 
with reasonable diligence. All employees must be Ottoman 
subjects except the Engineer, the technical staff, and Superin- 
tendents. Full and complete records of all kinds must be kept, 
and also maps, and the same at all reasonable times held open 
for inspection by local and general government officials of the 
Bureau of Mines or their deputies. If new ores are found other 
than those mentioned in the concession, the government reserves 
the right to insist upon a new grant, or the formal amendment 
of the existing one. 

Ancient mines, abandoned and forfeited mines and mines that 
have been rejected by the government engineers as probably 
unpayable are put up at auction every six to twelve months, 
and granted to the highest bidder. 

When a concession is secured on alienated land, the holder 
thereof must arrange with the surface owner for such rights 
of the surface as may properly be needed for its economical 
operation. If a rental deal is made the owner may collect double 
the net revenue the gound has been yielding to him. If a sale 
is made the owner may collect double its assessed valuation. 

Mines cannot legally be abandoned within five years from date 
of concession. Or, if abandoned sooner, the liability for rental 
continues to the end of that term. To effect legal abandonment 
the concessionaire must formally apply to the Ministry of Mines, 
accompanying his application with full reports on the history, 
production and present condition of the property, with both sur- 
face and underground maps in triplicate, and list of all improve- 
ments and installations. 

A prospector who has discovered a mine, but who has been 
refused a concession for the same, has the right to collect from 
anyone who subsequently secures a concession for it a lump 
sum of £100 and 5% in perpetuity of the net profits that may be 
realized. 

If a third party, prospecting on a conceded tract, makes a 
discovery of a mineral the right to work which is not mentioned 



240 INTERNATIONAL MINING LAW 

in the concession, the discoverer has the preference — other con- 
siderations being equal — in obtaining a concession himself to 
work the newly found mine. 

Concessionaires on the public domain must delimit the sur- 
face area they desire to use in connection with their underground 
operations, and may not exceed that area without formal au- 
thority duly obtained. On the thus selected and monumented 
part of the conceded tract prospecting by others is prohibited, 
while on the remainder all duly licensed prospectors have full 
rights. 

SERBIA 

(Law of June 27th, 1900) 

The State claims the exclusive ownership of all underground 
property. Prospecting, if any digging is contemplated, is not 
permitted, even by a soil owner on his own property, without 
governmental authority. This however may be obtained by 
anyone and without cost. The document simply gives the right 
of surface inspection, and of making such small excavations here 
and there as may be necessary in the process of taking hand 
samples. If, however, the explorer wishes to do more work at 
any particular place, he may secure at a nominal cost an exclusive 
right, good for one year, to explore a defined tract not to exceed 
in size about 125 acres. This right is renewable at the discretion 
of the authorities. 

If a permanent mining right is desired, a rectangular area 
measuring about 1500 by 600 feet will be granted whenever the 
explorer satisfies the authorities that he has discovered a new ore 
body or occurrence that can be made profitable, that he is 
personally qualified by knowledge or experience to bring about 
such a result, and that he can command sufficient capital. The 
grant, when allowed, is for 15 years, at the end of which time it is 
renewable at the discretion of the authorities, and may be made 
perpetual. But even in the latter event a sale of the property 
is not legal without the consent of the authorities. 



EUROPEAN SYSTEMS OF MINING LAW 241 

RESULTS 

It has not been found possible to collect accurate statistics 
of the metal production of Europe prior to 1900. This is due to 
the fact that a very considerable amount of the ore treated in 
European smelteries comes from other parts of the world, and, 
until recent years very incomplete records were kept or given out 
of these importations. Again, since the outbreak of the war no 
statistics are available from Germany, Austria-Hungary, the 
Balkan states and Turkey, and little that is reliable from Russia. 
Hence the following tabulation, which covers only the thirteen 
year period from 1901 to 1913 inclusive. And in presenting it 
the author desires to admit frankly that it may be in part 
somewhat inaccurate because, in spite of the great care taken, 
he believes that in the items of copper, lead and zinc some metal 
has been included that originated in South America, Australasia 
and South Africa. It must therefore be taken for what it may be 
worth. It is thought that the possible errors will not exceed 
ten to fifteen percent at the utmost. 

Nearly all of the gold and all of the platinum is produced in 
Russia, nearly all of the tin in England, and all of the quick- 
silver in Spain, Austria and Italy. 

As the figures show the gains to be greater than the losses the 
industry as a whole is in an advancing condition, though the 
figures for platinum are somewhat misleading, for it is well 
known that the alluvial fields where this metal is found are 
approaching exhaustion, and are not being extended. But the 
decline in the output of the precious metals is not a healthy sign. 
In all mining countries the search for gold and silver has always 
been the main cause of the discovery of deposits of the other 
metals. The base metals have attracted the attention of the 
prospector either while looking for the noble ones, or after learn- 
ing by experience that the latter are often present to some extent 
in ores of the former. Whenever the production of the precious 
metals begins to decline the inference is that few new discoveries 
of any kind are being made, and that the industry is living mainly 



242 



INTERNATIONAL MINING LAW 



on its past record. This is preeminently the case in Europe 
where little if any public land remains outside of the old domain 
of the Turkish and Russian empires, and where the restrictions 
inevitably connected with searching over privately owned land 
in long settled communities discourage prospecting and limit 
the business of discovery to enterprises calling for large capital 
expenditures^, such as the sinking of deep shafts or bore holes, 
or the installation of dredges or hydraulic plants. 

The maximum gold product within the term was $41,866,904 
in 1910, of silver $15,536,699 in 1912, of copper $44,755,990 in 
1913, of lead $57,138,312 in 1912, of zinc $100,264,507 in 1912, 
of tin $4,573,800 in 1911, of mercury $4,485,705 in 1911 and of 
platinum $13,650,000 in 1912. 



Europe, 1901 to 1913 (inclusive) : Austria-Hungary, Belgium, France, Germany, Great 
Britain, Greece, Italy, Norway, Portugal, Russia, Spain, Sweden and Turkey 



Metal 


Term 


Years 

in 
term 


Total product 
of term 


Average 
annual 
product dur- 
ing term 


Product of 
1913 


Gain ( + ) 
or loss ( — ) 
in 1913, as 
compared 
with 
average 


Gold 


1901 to 1913 


13 


$436,312,656 


$33,562,512 


$30,638,906 


- 8% 


Silver 


1901 to 1913 


13 


163,150,915 


12,550,070 


10,853,269 


-14% 


Copper. . . . 


1901 to 1913 


13 


428,180,305 


32,936,946 


44,755,990 


+ 36,% 


Lead 


1901 to 1913 


13 


606,179,555 


46,629,196 


50,386,970 


+ 8% 


Zinc 


1901 to 1913 


13 


814,690,603 


62,668,508 


83,529,600 


+ 33% 


Tin 


1901 to 1913 


13 


45,199,024 


3,476,848 


4,323,002 


+24% 


Mercury. . . 


1901 to 1913 


13 


44,186,997 


3,398,999 


4,112,080 


+21% 


Platinum . . 


1901 to 1913 


13 


101,645,024 


7,818,848 


12,375,000 


+ 58% 








$2,639,545,079 


$203,041,927 


$240,974,817 


+ 19% 



CHAPTER XII 

Miscellaneous Mining Laws. Digests of the Mining Laws 

of British Guiana, British India, Burma, Ceylon, 

China, Congo Free State, Cyprus, Dutch 

Guiana, Egypt, Federated Malay States, 

French Guiana, Gold Coast and 

Ashanti, Haiti, Japan, Mysore, 

Nigeria, Siam and British 

North Borneo 

BRITISH GUIANA 

(Law of 1903, with amendments to January 1st, 1917) 

The government claims the exclusive ownership and control of 
all mineral substances occurring on the public domain, and of the 
precious metals and stones on alienated land. On the latter the 
owners thereof may prospect for, mine, and realize upon all other 
mineral substances within their lines without government permit, 
but are required to conduct their operation, so far as the treat- 
ment, safety, and health of employees are concerned, in accord- 
ance with the prescriptions of the law; also to be ready at all 
reasonable times, by keeping proper books of account and maps, 
to be able to respond to requests of government officials for 
statistical information as to their operations. 

Prospecting is not free. A license is required, which may be 
obtained either at the office of the Commissioner of Lands and 
Mines at Georgetown, the capital, or from any district Warden. 
The cost is 25 cents. It is good for 12 months, and is indefinitely 
renewable — at the option of the authorities — at the same price. 
It confers the right to prospect for all mineral substances on the 
public domain, and for gold, silver and precious stones on private 

243 



244 INTERNATIONAL MINING LAW 

land, and to locate as many claims as desired on discoveries of the 
same, but confers no right to mine, remove, or realize upon valu- 
able material found. 

When a discovery of importance is made the discoverer must, 
within 90 days, register his find with the district Warden, or, if 
there be none, with the Commissioner of Lands and Mines at the 
capital, and simultaneously to apply for a mining license. Regis- 
tration fee is fifty cents, license fee, $2.00. The latter continues 
in force indefinitely so long as the annual ground rental and roy- 
alty are paid, and the property is operated to the satisfaction of 
the Warden in accordance with the provisions of the law and 
the regulations thereunder. 

The rental required is 20 cents per acre per annum, payable in 
advance. The royalty is a matter of bargain with the authorities 
at the time the mining license is issued. 

The maximum size for lode claims is 1500 by 800 feet; for allu- 
vial claims not less than 1500 by 800 feet, nor more than 500 acres. 
When possible all such tracts must be laid out in the shape of 
parallelograms, and preferably as rectangles. Vertical planes 
form boundaries in all cases, and hence no extralateral rights are 
allowed. On precious stone claims, in addition to rental and 
royalty, a charge of four cents per cubic yard of gravel or soil 
handled is periodically payable, also a fee of $100 per acre — or 
fraction thereof — the latter in advance. 

After registration of the mining license, conveyancing rights 
are complete, but must be effected through the government office. 

The Commissioner of Lands and Mines has the power to issue 
licenses giving exclusive prospecting and mining rights on pri- 
vately owned land for gold, silver, and precious stones, but not for 
any other metals or substances. The soil owner, however, may 
operate without license for the latter, but not for the former. 

The government may at any time proclaim a mining district for 
all mineral substances on the public domain, and for the precious 
metals and stones on alienated land, and appoint a Warden in 
charge of it. As soon as the public are officially notified of the 
boundaries of such a proclaimed area, all entry therein or exit 



MISCELLANEOUS MINING LAWS 245 

therefrom is prohibited except at certain specified stations, and at 
these travelling parties of either natives or whites must stop and 
allow themselves to be searched and questioned. 

The governor has the power to grant a concession for mining at 
any time. Its size, period, and terms are matters of negotiation 
except that the first item may not be more than 500 acres. Ex- 
clusive prospecting tracts may also be secured. In both cases the 
details of term, rental, royalty and other matters are arranged 
between the government and applicant. 

BRITISH INDIA AND BURMA 

(Law of September 15th, 1913, with amendments to January 1st, 1917) 

Inspection of unoccupied government land and the taking of 
samples for assay or display from the surface are free. Upon 
occupied land the permission of the owner must be obtained. 
But no excavating or digging can be carried on without a pros- 
pecting license, and before this will be granted the applicant 
must show to the satisfaction of the authorities that he is a 
loyal subject of the British Empire. 

The prospecting license is granted only in connection with a 
selected tract of land. To secure it application is made to the 
Collector of the district in which the tract lies, and a sketch 
map presented. Before the latter is prepared the tract may 
be marked off on the ground by suitable corner stakes or cairns 
of stone. A deposit of a sufficient amount to cover the cost 
of a survey is also required, and in addition a deposit of 100 
rupees (about $32) per square mile — or fraction thereof — of the 
tract, or proper security must be given. The term allowed is 
one year, with an extension of two years at the option of the 
authorities. When the license is granted there is payable a 
fee not greater than one rupee per acre or fraction thereof per 
yearly term. 

During the life of the license the holder has the exclusive 
right of exploration on the tract, and may realize upon substances 
found upon payment of the royalties as hereinafter given. An 
individual or company may take out as many of these as are 



246 INTERNATIONAL MINING LAW 

desired, and after registration the franchise may be sold or 
encumbered, provided the grantee is a party satisfactory to the 
authorities. The document of conveyance must, however, 
be registered and a transfer fee of 50 rupees paid. Within its 
term or that of its extensions the holder is entitled to demand 
a lease on any substances found except precious stones. 

The maximum lease area is 10 square miles, which may be 
selected by the licensee in one or more blocks all of which must 
be wholly within the prospecting tract. But before the lease 
is granted the Collector has the right to demand of the applicant 
confidentially all information in his possession as to mineral 
found or geological formations and conditions encountered on 
those parts of the prospecting area not asked for. 

A deposit of $160 (500 rupees) must accompany the applica- 
tion, also a sketch plan of the ground desired, a statement of the 
mineral or minerals it is expected to produce, and the period 
for which the lease is desired. If the map is not considered 
satisfactory by the authorities, they have the power to order 
one made by a government engineer at the applicant's expense, as 
a preliminary to which they can demand the delimiting of the 
area by the setting of stakes or cairns of stone at each corner. 

In general leased areas must be rectangles with lengths not 
more than four times the widths. But the Governor in Council 
may authorize other shapes and dimensions, as for dredging 
areas, when, in his opinion, the circumstances warrant it. The 
term cannot exceed 30 years, but a renewal for an equal period 
is obtainable at the option of the authorities and on such new 
terms as they may set. A lease confers the right to mine for and 
recover only such substances as are expressly stated therein. 
If others are found a new lease must be taken out to cover them. 
The royalties demanded are as follows : 

On coal and mica, 5% of the sale value at the pit's mouth with 
a minimum of four cents per ton. 

On oil, 16 cents per 40 gallons. On iron, one cent per ton of 
crude ore. 

On gold and silver, 7}£% of the annual profits or 2}i% on 



MISCELLANEOUS MINING LAWS 247 

the gross value of the ore treated or sold, at the option of the 
government. On all other minerals, 2}4% of the sale value 
at the mine or after passing through dressing works. 

There is also due under certain circumstances what is called a 
"dead rent," the amount of which is fixed at the discretion of the 
authorities, but may not be less than two cents per acre per 
annum for iron ore, eight cents per acre for coal, gypsum, bauxite 
and other industrial minerals and 32 cents per acre for gems, 
precious metals and base metals. This tax is levied only when 
the operations of the lessee are not satisfactory to the govern- 
ment, and when the royalty being paid is not as much as the 
tax would amount to. 

For such surface area as the lessee may require, a rental of 
not less than eight cents and not more than 32 cents per acre 
is demanded, payable annually in advance. Leases are assign- 
able provided the grantee is an individual or corporation satis- 
factory to the government, and under the condition that the 
intention to transfer and all particulars of the transaction be 
disclosed within one month of the date of the transfer, and the 
document of conveyance registered at the office of the Collector 
within a further period of two months. Registration fee is 
$16.00. Operations in earnest and with all reasonably proper 
appliances must be under way within one year of the date of the 
lease, and continued thereafter with diligence and skill. Com- 
plete accounts and working maps must be maintained, and the 
same, together with all parts of the property, both above and 
underground, held open for inspection and examination at all 
reasonable hours by the authorities. 

Leases on areas yielding gem stones may be secured only 
through negotiations with the Governor General in Council. 
No lease of any kind may be abandoned without first giving 
the authorities 12 months' notice of the intention. 

CEYLON 

The government claims the exclusive ownership of all minerals, 
both in the surface soil and below it in the bed rock on the public 

17 



248 INTERNATIONAL MINING LAW 

or Crown lands, but admits that surface ownership carries with 
it all underground rights except where the latter have been 
expressly reserved in the deed of grant. As Ceylon was well 
settled before it passed into the status of a Crown colony of the 
British Empire, the public domain is not large, and is confined 
mainly to the mountainous and difficultly accessible parts of the 
island. 

Prospecting and mining for the precious metals and gem stones 
is forbidden, except to holders of government licenses. It is 
not clear whether these must be obtained by searchers for other 
minerals, but the presumption is that they should be. A license 
costs five rupees, is good for one year and may be renewed 
for two more at the option of the government; and it confers 
the right to search for and recover those substances specified 
in it when found on a selected tract, the name of the owner 4 of 
which — if any — must be given, and his consent in writing pre- 
sented when the license is applied for. The maximum ground 
rent claimed by the government from the holder of a prospecting 
license is one rupee 1 per acre per annum, and the maximum royalty 
is 15% on precious metals and stones, 10% on plumbago and 20% 
on all other minerals. In practice these rates are often reduced 
temporarily, and the amount of each substance that may be 
taken away and sold is fixed, the intent being to encourage the 
licensee, after a reasonable time devoted to exploring, to apply 
for a lease. Licenses are not transferable, and the holder of 
one may at any time during its life be called upon to respond to 
claims for damages by the surface owner for injuries inflicted 
or usage interfered with, or to give security for what may occur 
in the future as the result of his operations. At the termination 
of the license period or its extensions, the licensee must fill up or 
fence all excavations to the satisfaction of the authorities. At 
any time during its life the holder has the preferential right to 
apply for a lease if the tract is on the public domain, excepting 
for ground yielding precious stones, where the government 

1 The rupee is worth about 32 cents in U. S. money. 



MISCELLANEOUS MINING LAWS 249 

reserves the right to reject any and all applications, or to grant the 
ground to whom it choses. 

Applications for leases are made to the local Agent of the 
central government in whose department the land desired is 
situated, and must be accompanied by a deposit (not to exceed 
1000 rupees) to cover costs of investigation of title, surveys, etc. 
They are granted only on public or Crown land. Each applica- 
tion must state the mineral or minerals expected to be recovered, 
and must be accompanied by a map of the tract giving its situa- 
tion with respect to well known land marks in the vicinity. The 
area asked for cannot be less than 10 acres, nor more than 100. 
No individual or corporation may become the holder of, or an 
interested party in leases to an extent exceeding a total of 500 
acres. The ground asked for must be of rectangular shape, with 
length not greater than four times its width. 

The term of lease cannot exceed 30 years and no agreement for 
its renewal or extension is permitted without special authority 
from the governor of the colony. A rental of 100 rupees per 
acre per annum is payable in advance. Royalties on sales are as 
follows: on plumbago selling at 300 rupees per ton of 2240 lbs., 
10%; and on all of less value, 5%; on all other minerals not over 
20%. But when the royalty exceeds the rental in amount the 
latter is remitted. All other conditions and terms are arranged 
by negotiation between the applicant and the authorities. 

CHINA 

Although China is now, and has been for centuries, a consider- 
able producer of several of the metals — notably copper, tin, and 
antimony — it has no mining law. However, in those districts 
where most of the mines are situated, namely Yun-Nan, Se- 
Tchouan, Konei-Tcheou, and Kouang-Si, the industry is con- 
ducted under a code of customs of great antiquity, which — as 
would naturally be expected — are based on very primitive con- 
ceptions of human and property rights. There is of course no 
public domain remaining in the country. Every inch of the sur- 
face that will produce food for man or cattle is owned, and either 



250 INTERNATIONAL MINING LAW 

cultivated or used as pasture. The owners make no claim to 
underground rights of any kind, and no one attempts to explore 
for ore except the members of certain families and tribes who have 
held the right from time immemorial. For these, prospecting 
and mining are absolutely free. They may begin excavating at 
any time upon any piece of land, without permission of the owner 
or of the authorities, and without becoming to the least degree 
responsible to the former for any damage to his premises, or for 
any inconveniences in its usage. The one right possessed by a sur- 
face owner in connection with mining is the privilege of retaining 
10% of the material brought to the daylight through a mine 
entrance situated on his land. 

The male adult miners belonging to the mining caste operate 
either singly or in small or large mining groups as they may prefer, 
but generally in groups, and under the captaincy of a man who is 
not of their caste, but belongs to the lowest grade of the mercan- 
tile or trading class. He is never allowed to go underground or 
to direct mining operations. His function consists in acting as a 
business intermediary or agent for the miners in supplying them 
with food, clothing, tools, and other necessities, and in disposing 
of the ore produced. The latter is sometimes beneficiated in the 
vicinity, but more often exported to other regions for such treat- 
ment as may be necessary to make it marketable. He also cares 
for the food, shelter, and clothing requirements of the families 
of the miners while they are at work on the property in his care, 
and is absolutely responsible for the health, safety, and lives of 
the workmen. Finally, out of the proceeds of ore sales, he must 
manage to keep from the rapacity of the ore buyers, the govern- 
mental officials, and the tax collectors, his own small compensa- 
tion or wage, if he can. 

The miners, once underground and under cover, pursue the ore 
in any and all directions without regard to surface boundary lines, 
and are never molested or interfered with by those under whose 
property they delve, even when, as is sometimes the case, the foun- 
dations of houses and other structures are undermined, and loss 
or disaster results. Meantime they pay royalty only to the 



MISCELLANEOUS MINING LAWS 251 

individual who owns the tract upon which is the entrance to their 
workings. It often happens that after burrowing around through 
hundreds of feet of low drifts the miners will come to the surface 
for air at a point far distant from the opening where their opera- 
tion began. The latter is then abandoned, and thereafter the 
royalty is paid to the owner of the tract upon which is the new 
entrance. 

When two groups of miners working under separate captains 
encounter each other underground, the mineral in the face where 
they meet is divided between them, and each resumes opera- 
tions in another direction. There is rarely any quarreling at such 
meetings. 

The discoverer of a new mine or a new ore body in an old mine 
is held to be the sole owner of it, with the right to pursue it in any 
and all directions until he meets another discoverer advancing 
from some other starting point on the same vein or deposit. In 
each case a distinct and definite underground property right is 
considered to have been established, which is perpetual, and 
cannot be annuled by cessation of work or even abandonment of 
the premises for years. This right descends from father to son 
indefinitely. There are no government records of such matters, 
but the chain of title is preserved with great care in family 
archives. Naturally, after a system of this kind has been in exis- 
tence for even a few generations in a mining region, if it is desired 
to secure a large area there for modern operative purposes, prac- 
tically the whole population of the vicinity must be bought out or 
otherwise satisfied, before a title of any value can be secured, and 
even then there is no certainty that it will not be attacked sooner 
or later by descendants of families that have moved out of the 
region. So far the government appears to have made no efforts 
to alter this condition of affairs. 

THE CONGO FREE STATE 

There are two mining laws in force in this great region, one of 
which applies only in that part of it which is known as the Ka- 
tanga mineral field, while the other governs operations over the 



252 INTERNATIONAL MINING LAW 

remainder of the territory in question. As is generally known, 
the administrative control of the valley of the Congo river was, in 
1897, placed in the hands of Belgium. At that time little if 
anything was known of its mineral possibilities. What govern- 
ment existed was of decrees by King Leopold, under whose rule 
the exports consisted principally of rubber and ivory. When 
it became known that mineral indications existed in that part 
now known as the Katanga district, a code of mining laws was 
promptly promulgated to cover the assumed necessities of 
the case. This, known as the Congo code, is still in force in very 
much the same shape as originally framed. Later, when the very 
remarkable mineral resources of the Katanga field became better 
known, it was considered advisable by those in control to provide 
a special code for that region, which is known as the Katanga law, 
and which governs operations in a field that covers about 
200,000 square miles. 

The mineral production of the Congo basin is, as yet, merely 
nominal, because of the great distance of the mines from the 
coast, the enormous capital and long time required to establish 
lines of communication to them, and the fact that no workable 
deposits of coal have yet been found in Africa nearer than those 
in Southern Rhodesia. But it is now connected by rail with 
Capetown at the southern end of the continent, and with Beira on 
the east coast, and this has made possible the importation of 
machinery and supplies, and of coal from Rhodesia. Hence the 
southern and eastern edges of the Congo basin are now accessible 
and are slowly attracting a white population, which, however, so 
far consists almost entirely of Europeans connected with the com- 
panies that have been organized in England, France, and Belgium 
to operate the mines. There is practically no prospecting — in 
the American sense of the term — in progress in any part of the 
region, and really never has been, for the mineral deposits that 
have so far attracted the attention of capitalists there have been 
known of and worked by the natives for centuries for their con- 
tents in copper, and very few of the whites that have come into 
the country are of the class that would produce mineral explorers. 



MISCELLANEOUS MINING LAWS 253 

Nor is it at all likely that the mining codes in force would attract 
pioneers of that kind. 

For the details of these two codes the author is indebted in the 
main to a very comprehensive article by M. Louis Aguillon, which 
appeared in the 11th Series of Annales des Mines, Volume 1, pages 
5 to 28, of the year 1912. 

The Congo Law 

(Consisting of the royal decrees of June 8th, 1888, and March 20th, 1893, 
with amendments dated July 22nd, 1904, and October 18th, 1908) 

The right to prospect for and work ores of the metals, coal, 
salines and other mineral substances can be exercised only by one 
who holds a permit to that effect from the authorities, the issue 
of which is discretionary with them, and in any event must be 
approved by the king of Belgium. Provided with such a permit 
a discoverer has a preferential right, during a term of six months 
after notifying the authorities of a discovery — if the latter has 
been made on land not already occupied by others — to claim a 
concession of a tract not in excess of about 250,000 acres in area, 
for a term of 99 years. If the application is allowed, a sum of 
about $500 must be at once deposited, together with an impost of 
about 80 cents per acre if the discovery is of the precious metals 
or stones, or about 40 cents per acre if of other substances, and 
work in earnest must be at once begun and maintained. In addi- 
tion, a royalty is taken of 5% of the net profits of the business, 
unless it amounts to less than 40 cents per acre in the case of the 
precious metals and stones, and 10 cents per acre in the case of the 
other substances. 

According to the terms of Section 2 of Article 15 of the colonial 
charter of October 18th, 1908, it was required that every applica- 
tion for prospecting or mining rights must be left for 30 days 
during its session on the desk of the two legislative chambers of 
the kingdom of Belgium for their consideration and approval, and 
must include a clause giving the government the right to repur- 
chase the concession at any time for a reasonable consideration. 



254 INTERNATIONAL MINING LAW 

The Katanga Law 

The Katanga district, though politically united in all other 
respects with the rest of the Congo Free State, has been granted a 
mining law of its own, the administration of which has been dele- 
gated to a Committee composed of six individuals, four of whom 
are appointed by the Belgian government and two by the Ka- 
tanga Mines Company, and is known as the Katanga Special 
Committee, with headquarters at Elisabeth, the capital of the 
district. Also, the Katanga Mines Company appears to have 
been granted by the government of the Congo Free State the right 
to all the undersoil minerals of the country until March 11th, 
1990, and is thus a chartered proprietary organization invested 
with the privilege of underletting these mineral rights and to 
administer the mining law during the life of its charter under the 
supervision of the Belgian government. Its standing is there- 
fore very similar to that of the British South Africa Company 
which controls the region known as Southern Rhodesia. 

The law is as follows : Mineral substances are divided into five 
categories, the first three of which depend respectively upon their 
contents in the metals, in sulphur or phosphorus, and in com- 
bustibles (coal, asphalts, etc.). The fourth includes rock salt, 
metallic salts, and mineral springs, and the fifth diamonds and 
other precious stones. All these are listed as substances the 
ownership of which does not pass from the State in grants of the 
surface for agricultural, grazing, and other lines of surface activ- 
ity, but which remain the property of the government to be dis- 
posed of at its discretion under the provisions of the mining law. 

The right to prospect is not free, but may be allowed through 
the purchase of what is called a " General License" which permits 
surface inspection throughout Katanga on lands not already 
under some form of mineral concession. It does not confer exclu- 
sive privileges anywhere. However, another document called a 
" Special License" is obtainable which does permit exclusive 
rights over a defined and registered tract. Neither of these 
licenses gives anything more than the right to inspect, explore, 



MISCELLANEOUS MINING LAWS 255 

and develop. If it is desired to conduct full mining operations 
and realize upon substances produced, what is called a "Working 
License" must be taken out, and in this the substance or sub- 
stances expected to be recovered from the operations must be 
clearly specified. The general license is good for two years, 
costs about $20 and is indefinitely renewable at the same price 
for the same term. If it is desired by the holder to use on pri- 
vately owned land the right to do so can be obtained from the 
government, if the owner refuses to grant it. This form of per- 
mit also allows of search on areas covered by a special or working 
license for all minerals not specifically listed in those documents. 

The special license confers the exclusive right to search for all 
substances specifically listed therein, on a circular tract having a 
diameter of about 3000 feet, and containing therefore about 200 
acres, provided the objects of search are the precious metals or 
stones. In all other cases the tract is a circle with a diameter of 
about 15,000 feet corresponding roughly to about 5000 acres. 

In all cases priority of discovery determines priority of right to 
apply for a defined tract. A discovery stake must be planted 
with the date of discovery clearly inscribed thereon, and within 
30 days thereafter written application must be made in person or 
by attorney to the Bureau of Mines. This application is posted 
at the Bureau for 40 days during which time all protests against 
its issue must be filed at the same place. If none appear the 
claim is usually awarded. But the law gives the authorities the 
right to refuse any and all applications in whole or in part, if, in 
their opinion, they conflict with previously granted rights of any 
kind. Any desired number of such reserved tracts may be ap- 
plied for and secured by an individual or company. Their term 
is two years, renewable once for a like period. The cost in each 
case is about $40, and the right so acquired is transferable after 
the payment of a tax of 5% of the consideration passed each time 
that a transfer is made. The holder acquires no right under this 
license to realize on mineral found, but will be given that privilege 
to a limited extent upon request, and the payment of 10% of the 
gross value — at the mine — of all products sold. 



256 INTERNATIONAL MINING LAW 

At any time during the life of a special license the holder thereof 
may apply for and secure a working license, provided he can 
satisfy the authorities that he has sufficient capital at his com- 
mand to operate the property properly. This license permits of 
the selection of a rectangular tract of any size desired, and dis- 
posed in any position selected, so long as it lies completely within 
the circular area covered by his special license. Whatever its date 
of issue it expires by limitation on March 11th, 1990, at which 
time, according to the contract in force between the Congo Free 
State and The Katanga Mines Company, the charter of the lat- 
ter terminates. 

If more surface is required outside of this tract for legitimate 
mining purposes in connection with the working license grant, the 
holder is able to secure it either directly from the Company, if the 
desired area is unoccupied, or from surface owners through 
the authorities who, if necessary, will institute condemnation 
proceedings. 

Territory acquired by virtue of the working license cannot be 
sold or incumbered without the consent of the authorities, but if 
the consent is obtained a transfer fee of 5% of the consideration 
passed is payable. On such a concession the annual payments are 
as follows: First, 1% of the gross value of the product unless 
that amounts to less than about four cents per acre of its area, 
for all substances except precious metals and stone; and 5% of 
the gross value of the product in the case of these latter. Second, 
33% of the net profits realized. But this tax may be com- 
pounded in the case of a joint stock company by the delivery of 
one-third of its shares to the authorities, and allowing them one 
Director on its board of Managers, with the further right to 
subscribe for 20% of any increase of capitalization that may be 
determined upon in the future. 

Forfeiture occurs automatically in the case of all licenses upon 
the non-payment of any sum due to government, and if, at the 
end of two years after the issue of the concession, work m earnest 
and with all reasonable proper appliances and facilities is not in 
progress. 



MISCELLANEOUS MINING LAWS 257 

CYPRUS 

In this island, which is a Crown colony of the British Empire, 
and where remarkably extensive remains of ancient mining 
operations — mainly for copper — exist, the mining law of Turkey 
governs, with such modifications as were made necessary by the 
transfer of the country in 1878 from Turkey to Great Britain, 
and such few ameliorations of the same as have since been ordered 
by the local authorities. This law, as will be noted by refer- 
ence to it, makes scant provisions for the activity of prospecting, 
and the only form of mining property recognized is the concession, 
obtainable by direct application to and negotiation with the 
authorities. The terms and conditions of these grants, when 
given are, within certain limits, wholly matters of offer and 
bargain. The government requires a royalty of 5% on the 
selling value at the mine of all products, but a minimum of 
£500 is fixed, no matter how small the output may have been. 
Although the island abounds in workable deposits of lead, zinc, 
manganese, and other desirable minerals, and still has great 
resources in copper, its metallic production is insignificant, as 
might be expected so long as the industry of mining continues 
to be under the general system of the Turkish law, even as im- 
proved by the universally honorable methods of British rule. 

DUTCH GUIANA (SURINAM) 
(Law of September, 1882, with amendments to January 1st, 1917) 

Only citizens of the Netherlands, or of the colony of Surinam, 
or companies legally organized under the laws of one of the two 
countries, and represented in Surinam by a legally authorized 
Agent, may acquire and hold mining rights in the colony. 

Prospecting is not free, upon either Crown or private land 
except upon the latter by its owner, and then only after giving 
due notice to the Superintendent of the Crown Domain. When 
it is desired to prospect upon the former a written permit from 
the Governor is required, and for the latter the written consent 
of the owner. 



258 INTERNATIONAL MINING LAW 

All applications for prospecting privileges must be accompanied 
by the name, nationality, and legal residence of the applicant, 
and a map showing the relative position of the ground desired, 
and its area. Also a receipt from the Colonial Treasurer showing 
the payment to him of a sum equal to one cent per hectare per 
annum for the term desired. The application must be signed 
by all parties in interest, or by their duly authorized agents, or, 
if made on behalf of a partnership or a company, by its legal 
representative. No application may be for less than 200 nor 
more than 20,000 hectares. The Governor, sitting in Privy 
Council, has the right, for causes which seem to him sufficient, 
to reject any application. 

The maximum term allowed is three years, which may be re- 
newed twice for one year each time, making a possible total of 
five years. 

Before the exercise of any rights granted by a prospecting 
permit, the document must be exhibited to the Commissary of 
the district in which the property lies, who is required to visit 
and verify the description, and, if everything is correct, to register 
it, which makes it effective. The holder then has the right 
at any time within its term, or any extension thereof, to select 
and stake off a part or the whole of the area, and to apply for 
the right to mine thereon. 

A prospecting permit conveys the right to prospect only. It 
gives no authority to remove or realize upon any metals or 
ores found, but exploring shafts and other kinds of excavations 
may freely be made, and drill holes sunk. Assay samples may 
also be taken away. 

To acquire the right to mine and produce from any part or the 
whole of a prospecting area, application must be made in writing 
to the Governor, accompanied by a receipt from the Colonial 
Treasurer showing the payment to him of a sum equal to the 
rental of the tract selected for the first year of the term desired. 
No mining permit will be issued for a period of less than one 
year nor more than 40, nor for a tract measuring less than 200 
hectares. The rentals demanded are as follows: 



MISCELLANEOUS MINING LAWS 259 

For the first and second years of the term, 10 cents per hectare 
per annum. 

For the third and fourth years, 25 cents per hectare per annum. 

For the following years, 50 cents per hectare per annum. 

Rentals are payable annually, and at least 30 days before the 
end of each year of the term. . Failure to do this automatically 
terminates the franchise. 

The area represented by any such permit, may, at the option 
of the holder thereof, be reduced at the end of any year of its 
term, by application in writing to the Governor made at least 
40 days before the end of the year, by which a corresponding 
reduction of the rental for the next year is effected. But 
no reduction of area to a tract of less than 200 hectares is 
allowable. 

Before application is made to the Governor for the permit 
to mine, a provisional notice of the application contemplated 
must be given to the Superintendent of Crown Lands, together 
with a map of the premises desired, which must be prepared and 
sworn to by a Crown surveyor, and said notice must be registered. 
Within two days thereafter it must be filed with the Governor. 
The applicant, or his legal representative must have a domicile 
in Paramaribo, the capital of the colony, the street and number 
of which must be given. 

The Governor, acting with the Privy Council, is empowered to 
reject the application, in part or as a whole, in which case the 
rental paid in is in part or wholly returnable to the applicant. 
The latter, on his part, if he is not satisfied with the decision 
of the Governor in the matter, has the right to withdraw his 
application completely, and to recover the full amount of the 
rental deposited. 

The right to mine, once granted, conveys all the usual rights 
and privileges appurtenant to the business, and the holder of 
the franchise may also engage in agriculture on the premises, to 
the extent of raising thereon food for the consumption of himself 
and employees, but not for sale to others. 

Such mining concessions may be sold with the consent of the 



260 INTERNATIONAL MINING LAW 

Governor, who also, if supported by the Privy Council, may 
refuse to allow conveyance. If allowed, a transfer fee of two 
percent of the amount named in the deed is collected by the 
Government. 

No royalties or other dues of any kind, except rental, are 
imposed by the authorities, but all gold recovered must be 
declared and sold to the Government, who pays for the same the 
standard price in coin or currency, less a moderate charge for 
melting, refining, and assaying. 

When labor is sought, either in prospecting or mining, the 
business must be conducted in the presence of the Commissary 
of police, and in accordance with the rules and regulations 
connected with the employment of native labor, which in fact 
is the only class of labor attainable in the colony. Labor cannot 
be contracted for outside of the colony and brought in, nor may 
resident British Indian immigrants be employed in mining work. 
Each laborer whose employment is accepted by the employer 
and the Commissary of Police must be registered by name, the 
amount of wages payable to him agreed upon, the term of employ- 
ment, and also the locality where he is to work. During this 
term the employer is responsible to the government for his health, 
good treatment, subsistence and proper shelter, as well as for 
his wages. 

EGYPT 

(Law of 1916, correct to January 1st, 1917) 

The government claims exclusive ownership of all mineral 
substances, whether found on the public domain or upon pri- 
vately owned land, and will not sell its mineral territory, but will 
grant long-term leases thereon in consideration of ground rent and 
royalty. 

The law makes no provision whatever for the general prospect- 
ing of the country, and it would seem that any one is at liberty to 
make cursory inspection of the surface, at least upon unoccupied 
land. But no digging may be done without a License, and this 
license, when issued, covers a specified area over which, for the 



MISCELLANEOUS MINING LAWS 261 

time being, exclusive exploration rights are permitted. There 
are no such things as " claims." 

The government issues three classes of mining franchises, to 
wit: the Mineral Prospecting License, the Mining Lease, and 
the Mining Lease Protection Agreement. These cover all 
mineral substances except petroleum and natural gas, for which 
slightly different provision is made. 

The Mineral Prospecting license may be preceded by a " Reser- 
vation" which gives two months' exclusive protection and prospect- 
ing rights over a tract of land not already occupied and not more 
than one mile long and half a mile wide, at no cost except the regis- 
tration of the tract as delimited by location stakes set up by the 
applicant, on the assumption that the tract is unoccupied, but it 
makes no guaranties to that effect. At the end of that term 
the formal Prospecting License must be applied for if it is 
desired to hold the ground, and a fee of 25 LE 1 (about $125) 
deposited. Any individual or corporation may take out up to 
four of these tracts if they are laid out in one contiguous and com- 
pact block. The fee for each is 25 LE. They confer tentatively 
the exclusive right to dig and explore, but not to remove or real- 
ize upon any material found, except in the way of samples for 
testing or display. The term is one year, with privilege of two 
renewals of the same period and at the same cost per annum, and 
the right to search for one metal or mineral only. Application 
for these is made to the Chief Inspector of Mines, accompanied 
by the fee for the first year, a sketch map showing the locality and 
surrounding land marks as accurately as possible, and the name 
of the substance to be prospected for. Within 60 days after date 
of issue the applicant must apply for an official survey, and 
deposit the estimated cost of the same, which will be not less than 
25 LE. Until this is made and approved only preferential rights 
exist, and the government reserves the right to refuse its issue in 
case the survey develops the fact that the tract may be or is more 
suitable for other uses ; or is partly or wholly already assigned 

1 The letters LE signify the Egyptian pound (£), which has about the 
value of $5.00 U. S. gold. 



262 INTERNATIONAL MINING LAW 

to others. If granted the applicant must begin exploring work 
in earnest before the end of the first yearly term, and continue 
the same thereafter with reasonable diligence. If he holds more 
than one prospecting area arrangements can be made with the 
authorities by which working conditions for all may be performed 
at one point if desired. Monthly reports, giving full particulars 
of operations are required. A technically educated manager 
must be in charge of the work, and the holder is liable for a 
reasonable share of the expenses of keeping order in the district. 
No conveyancing rights exist for the ground covered by a pros- 
pecting license until a specified sum — agreed upon at the time 
of issue — has been expended in prospecting, and the amount of 
the same endorsed upon the license by the Department of 
Mines, and then only upon the payment of a registration fee of 
5 LE (about $25). 

At any time during the term of a prospecting license or its 
extensions, the holder thereof has the right to demand a lease of 
the whole or any part of its area. In shape this leased tract must 
be a rectangle, with length not greater than twice its breadth. 
The term allowed is 30 years, with an extension of 10 more. The 
ground rental in the case of a sedimentary deposit (alluvials or coal, 
etc.) is 1 LE per acre per annum, and for a lode deposit 2 LE. In 
addition, for all substances, 2 % royalty is required on the gross 
value of the output at the mine. Work must begin within four 
months of date of issue, and thereafter be practically continuous 
and reasonably energetic. As in the case of the prospecting 
license a technically educated manager must be in control of the 
work, monthly reports presented, share of district policing 
expenses paid, complete maps kept, and two copies supplied 
annually to the authorities. A lease gives full mining and selling 
rights for the product, but is good for one metal or substance only. 
If others of commercial value are found, and it is desired to recover 
them, new arrangements must be made before production and 
sale may occur. No conveyancing rights exist in the case of the 
lease except with the consent of the Minister of Finance. 

If ground outside of the area of a lease is desired for any pur- 



MISCELLANEOUS MINING LAWS 263 

pose legitimately connected with mining or metallurgy, such as 
machinery or reduction works sites, tramways, residences, etc., 
it is obtainable on reasonable terms on application to the au- 
thorities. As soon as a mining lease is issued all rights con- 
nected with the prospecting license which preceded it cease 
automatically. 

If the area included in a lease does not cover the area comprised 
in the prospecting license on which it was based, and the holder of 
the lease desires to further prospect the surplus area, he may 
secure exclusive exploring rights on the same by applying for 
what is called the Mining Lease Protection Agreement, which is 
practically a new prospecting license on the excess area. The fee 
for this is 10 PT 1 (about 50 cents) per acre per annum in the case 
of a sedimentary deposit, and 25 PT in the case of a lode deposit. 
In all other respects the conditions, rights, and obligations are 
identical with those already mentioned for the License. 

The holder of a mining lease who desires to surrender it and 
abandon the property, must give the Department of Mines six 
months' notice of the intent before he can be relieved from the 
obligations and duties of the franchise. 

For petroleum and natural gas the prospecting area allowable 
is a rectangle, no side of which is more than two kilometers in 
length. The term is a year, with two renewals of equal length at 
the option of the Department of Mines. The cost or fee is 25 LE 
per annum, and all the other conditions, obligations, and rights 
are practically identical with those of the mineral prospecting 
license. No realization on the value of product is permitted until 
a lease is taken out. The fee for the latter is 2}^ LE per hectare 
per annum (about $5.00 per acre), and the royalty 7}4% on the 
gross value of the product at the point of production. 

FEDERATED MALAY STATES 

(Law of 1911, with amendments to January 1st, 1917) 

In this British dependency, which includes the native states 

of Perak, Negri Sembilan, Pahang, and Selangor, mining rights 

1 The letters PT signify the Turkish piastre, which is worth about 5 cents. 
18 



264 INTERNATIONAL MINING LAW 

of all kinds are controlled exclusively by the central government 
(with the exception of certain tracts called '" ancestral land" 
in the state of Perak which have been held for many years by a 
few native families), and are open for occupancy and usage under 
the annual and long term leasehold systems, in consideration of 
ground rent, royalty, and export duty on products, and a 
compliance with the rules and regulations prescribed for the 
safety of employees and matters of sanitation. 

Prospecting is not free. A license is required which costs 
from $25 up, according to circumstances, and is good for such a 
term as may be agreed upon when issued. A fine of SI 000 is 
imposed on anyone found prospecting or mining without the 
document. Application for it is made to the chief official of the 
local Land Office, and must be in writing. Therein the tract 
desired must be described and located, and the metal or mineral 
expected to be found stated. All details are matters of negotia- 
tion with this official. A suitable sum must be deposited to 
defray the cost of the delimitation of the tract, and of such an 
examination of the status of the title as may be deemed necessary. 
No application insures the issue of the grant, nor even priority 
of its consideration over another for the same area filed later. 
If allowed, the applicant must specify the amount of land 
within its lines — not to exceed half its total area — for which he 
desires the prior and exclusive right to call for a long-term lease, 
in case his prospecting operations result in the discovery of pay- 
able mineral in sufficient quantity to warrant permanent opera- 
tions. Under such a license the holder thereof may explore and 
realize upon material found, by the payment of such royalty or 
export duty on the output as the terms of the contract specify. 
During this preliminary period of occupation all operations 
must be carried on to the satisfaction of the district Warden and 
his Inspectors, and with their full knowledge. 

At the end of the license term, if the licensee desires to continue 
work, he may apply for a long-term lease for that proportionate 
area of the tract specified in the license; and if the Resident is 
satisfied with the way in which he has been conducting his explor- 



MISCELLANEOUS MINING LAWS 205 

ing operations, and is of the opinion that mining there can be 
made profitable, he is empowered to grant the lease. He also 
has full power to decline to do so for reasons satisfactory to 
himself. 

Another form of mining title is called the "Individual Mining 
License." This confers mining rights on small sized tracts 
(like mining claims) but may be given only on land within the 
limits of a large tract which the Resident has previously pro- 
claimed to be a mining field. Each license costs $5.00, and 
expires automatically at the end of the year of its date of issue. 
It is neither transferable nor renewable although a new one for 
the same tract may be issued, and under it all work must be 
carried on "in such manner only as may be approved by the 
Warden or an Inspector.' ' The size and terms are wholly matters 
of arrangement between the applicant and the authorities. 

Long-term leases are obtainable by direct application in writing 
to the Chief of the Land Office, with whom all details of area, 
term, rental, royalty, and working conditions are arranged. This 
official also has full power to reject any application without 
explanation. If his approval is secured a survey is required 
and all boundary monuments must be placed before the formal 
lease will be delivered. When issued, it conveys full mining and 
realization rights on all metals and minerals found within the 
lines, together with the right to use as much of the surface as, 
but no more than, may be necessary for legitimate mining pur- 
poses. Ground rent is always payable in advance. Monuments 
must be maintained in good repair. Mining in earnest must 
begin within six months, and by the end of twelve months at 
least one laborer per acre of the leased tract must be kept 
constantly at work. 

FRENCH GUIANA (CAYENNE) 
(Law of March 10th, 1906, with amendments to January 1st, 1917) 

For the purposes of the law all mineral substances are classi- 
fied under the three headings of Quarries, Placers, and Mines. 
Quarries are deposits of material used in constructive or orna- 



266 INTERNATIONAL MINING LAW 

mental architecture, fertilizers, and other analogous substances, 
with the exception of nitrates and other salines. In general 
this class covers solid or stable deposits that may be worked in 
the open, and without processes for underground mining. When 
occurring on alienated land they belong irrevocably to the owner 
thereof. 

Placers are deposits in the surface soil (if the latter is not a 
distinct geological stratum other than alluvial) yielding metals 
or precious stones. These, wherever found, belong to the na-- 
tion, and the right to work them can only be procured by means of 
a government permit. When such a permit is acquired all min- 
ing rights cease when the underlying bed rock is reached. 

Mines include all other kinds of mineral deposits. Like the 
placers they are the property of the nation, and the right to work 
them can be obtained only from the government. When such 
a right is granted it covers all the substances that may be found 
within the boundaries of the grant, excepting placer deposits in 
the surface soil. 

The various substances on which mining rights may be ob- 
tained are divided into three categories, as follows: 

1. Combustibles (coal, oil, natural gas, asphalts, and allied 
materials) . 

2. Rock salt and other salines, mineral springs, nitrates, and 
phosphates. 

3. All other substances, except the class of quarries occurring 
on alienated land, which belong to the owner thereof and cannot 
be the subject of a government grant. All other mineral sub- 
stances may be, no matter where found. 

Permission from the government to mine any one substance 
conveys also the right to mine for any other substance of the 
same class found within the lines of the granted area, but for 
no substance of any other class. 

All individuals capable of holding property in the colony, 
whether citizens or aliens, may acquire the right to mine. But 
aliens must previously establish their identity, and must either 
have a legal domicile in Cayenne, the capital of the colony, or a 



MISCELLANEOUS MINING LAWS 267 

legally appointed representative there. Companies must be 
established in conformity with French law, and must have a legal 
residence or representative in the capital. 

Prospecting is not free. A permit is necessary. It costs 50 
francs, is good for one year, and is renewable indefinitely at 
the same price. It simply confers the right to make preliminary 
investigations and explorations on the public domain and on al- 
ienated land, but does not give any claim-locating right. In 
fact the law does not provide for mining claims of any specified 
size. The hectare (about 2}i acres), however, is the unit of 
measure of areas, and no mining claim may measure less than 
200 of these units or more than 1000 of them, excepting placer 
claims, which run from 10 to 250 hectares. In shape the claim 
must be rectangular, with the smaller sides not less than one- 
quarter the length of the longer ones, and the tract must be 
orientated to the true meridian. 

The procedure for acquiring mining property is as follows: 
A prospecting permit is first taken out, the holder of which is 
called a "permissionaire." When after prospecting a region 
a discovery (or an indication thereof) is made, the permissionaire 
plants a stake at the place, on which is inscribed his name, the 
date of planting, and the particular substance which he believes 
he has found. He then makes formal application to the Bu- 
reau of Mines for an exclusive prospecting area, which will be 
granted in the shape of a circle with a diameter not to exceed 
four kilometers, the center of the same to be the discovery stake 
erected. Application for this area must be made within three 
months of the date placed on the discovery stake, and it will 
be granted or refused within five days. The cost is 40 centimes 
per hectare of area per annum. It is renewable — at the op- 
tion of the government — at a cost of 50 centimes per hectare 
per annum for not over three more years. 

Areas of this kind may be located on either public or private 
land, but in the latter case the consent of the owner must first 
be obtained if possible, and a bargain made with him for indem- 
nity for any damage that may accrue. If no satisfactory ami- 



268 INTERNATIONAL MINING LAW 

cable arrangement can be made, the prospector can apply to 
the Governor, who, acting through the Bureau of Mines, will 
secure a reasonable contract with the soil owner. 

Having secured such an area the holder has the right at any time 
during its term (or the extensions thereof) , to apply for a defined 
tract within its limits not less than 200 hectares or more than 1000, 
upon which to conduct mining operations. This grant is called 
a concession, and the holder of one a " concessionaire." In 
applying for it a map of the locality on a scale of 1 to 10,000 
must be presented, and the class of substance to be produced 
must be stated. Simultaneously the first year's rental is payable. 
This is figured at the rate of 60 centimes per hectare up to 500 
hectares, and 75 centimes per hectare from 500 to 1000 hectares. 
Thereafter renewals may be obtained indefinitely by the payment 
annually in advance of 100 francs per hectare for all areas up to 
100 hectares, and one franc for each hectare over that amount. 

Mining areas so obtained must be marked by posts set at all 
corners in the following way. A hole one meter in diameter and 
one meter deep is excavated, the post set at its center and pro- 
jecting at least one meter above the surface, and the hole then 
filled with stones. On each post must be inscribed the name of 
the claimant, the date of the issue of the grant, and its number. 
The application for such a grant is at once registered at the office 
of the Bureau of Mines and a receipt given for the first year's 
rental. The papers then go to the capital of the colony, the ap- 
plication is advertised in the official Gazette, and if no objections 
to its issue are filed within a term of six months, the grant is 
executed by the Governor and the title is complete. 

The right to claim a concession accrues only after a prospecting 
area has been applied for and obtained, and at least two-thirds 
of the concession must be within this area. The other one-third 
may be outside of its limits if there is free land on which to place 
it. 

In the case of placer locations the area permitted is not less 
than ten nor more than 250 hectares, but as many of such tracts 
as desired can be applied for by anyone who has taken out a pros- 



MISCELLANEOUS MINING LAWS 269 

porting permit, and who has therewith applied for and secured 
a prospecting area. Claimants may begin work at once after 
application, and may continue working during the period usu- 
ally required for confirmation (six months), subject however to 
stoppage and restitution of values recovered meantime if for any 
reason the concession is not allowed. When allowed, a placer 
concession is good for a term of six years, and is indefinitely 
renewable for terms of the same length, subject to the payment 
of the annual rental. 

Recording, surveying, and other fees and charges connected 
with applications for prospecting and working rights are 
reasonable. 

On privately owned land, or on government land under lease 
for agricultural, grazing, or other purposes, the owner or tenant 
may prospect and mine without formally applying for an 
area. 

On all concessions granted, energetic work in good faith must 
begin within six months from date of grant, and be maintained 
thereafter with reasonable persistency. All stakes and monu- 
ments must be kept in good order at the expense of the claimant. 
If a " permissionaire " or a concessionaire desires to abandon 
his property, notice of the intent must be given to the Bureau 
of Mines a year in advance of the act, and at the time of 
the abandonment all stakes and notices must be carefully 
removed. 

On alienated land locators must arrange with the owners 
thereof for surface rights. If the latter are unreasonable in 
their demands appeal may be had to the authorities, who will 
secure equitable terms. On the public domain, if not leased 
for other purposes, full surface rights go with the mining grant. 
Upon leased public domain, if satisfactory terms cannot be 
secured from the tenant, the miner may use what surface he 
needs provisionally, pending adjustment by the authorities. 

The prospecting permit does not give to the "permissionaire" 
the right to realize in any way on ores or metals found. But as 
soon as a defined area is selected, and the rental for a year paid, 



270 INTERNATIONAL MINING LAW 

all material lawfully found may be converted into money. As 
soon as a concession is issued, the prospecting area that preceded 
it automatically becomes void and non-existent. 

All miners must keep books of account, in accordance with 
models prescribed by the law, also working plans of the mine. 
These must be open for inspection to the authorities at all 
reasonable times. Also, annually, a statistical report of operation 
must be made out and sent to the Chief of the Bureau of 
Mines. 

GOLD COAST AND ASHANTI 

(Law of 1900, amended to date of January 1st, 1917) 

Mineral rights of all kinds in this part of the British Empire 
are vested in the native chiefs, without whose consent no mining 
privileges are obtainable, but whose power to confer such fran- 
chises must be ratified by the local colonial government. 

Prospecting is not free. A license is required, for which 
application is made to the Governor through the Secretary of 
State, who, if approving it, forwards the papers to the Resident 
of Komasi, the capital. The latter also may approve or decline 
at discretion. If he adopts the former course the local native 
chief of the region in which the applicant desires to prospect 
is notified, and requested to afford facilities. The cost of the 
document is £10. It grants no exclusive rights, and is good for 
three months only, but is indefinitely renewable — at the option of 
the Resident — at the same price and terms. It permits surface 
inspection and exploration only, but the holder may take away 
such samples and specimens as may be necessary to test or display 
values, provided all such material is declared to the Resident, 
and also the place or places from which they were taken correctly 
described. 

The holder of such a license having made a discovery of impor- 
tance which he desires to operate, has the right then to negotiate 
with the local native chief for an exclusive area and for mining 
privileges thereon. When these negotiations are complete the 
applicant and the chief appear before the Resident at the capital, 



MISCELLANEOUS MINING LAWS 271 

and all terms of the bargain are considered by the latter, and, 
if necessary, modified until satisfactory. The agreement is then 
reduced to writing and signed by all three parties. No conces- 
sion may exceed five square miles in area, or have a term greater 
than 99 years. The annual rental and royalty decided upon are 
payable to the chief through the colonial Treasurer. 

All concessions must finally be examined and ratified by the 
High Court of the colony, and before becoming valid must be 
advertised in the government Gazette and registered. All 
expenses, including survey, are at the cost of the applicant. 

There is no limit to the number of concessions which an indi- 
vidual or corporation may apply for and acquire, except that 
the combined area of the same at any one time must not exceed 
20 square miles. After registration conveyancing rights are 
complete, but the transfer must be accomplished through the 
government recording office, and on each a tax of £1 per acre 
of area — or fraction thereof — is collected. 

In addition to the rentals and royalties payable to the local 
native chief or chiefs, a royalty of 5% on all divided profits is 
payable to the colonial government. 

A penalty of £50 is imposed on anyone found prospecting 
without a license, and a still heavier fine for attempting to nego- 
tiate with a native or a native chief without first taking out such 
a permit. 

Default in the prompt compliance with any of the terms of a 
concession renders the holder thereof liable to a fine of £5 per 
day for each day during which default continues. 

HAITI 

(Law of December 10th, 1860, amended to date of January 1st, 1917) 

For the purposes of the law all mineral substances are classified 
as Mines, Placers, or Quarries. 

Mines include those substances existing underground in rock, 
in the form of veins, beds or masses, such as ores of the metals, 
coal, oil, gas, asphalt, graphite, rock salt, baryta, fluorspar, 



272 INTERNATIONAL MINING LAW 

sulphur and other analogous minerals. These, whether existing 
on the public domain or on alienated land, belong to the Nation 
and are subject to appropriation by individuals and corporations 
under the provisions of the law. 

Placers are deposits of metals or minerals occurring in the 
surface soil, such as gold or tin-bearing gravels, bog iron ore 
and ochres, pyritiferous and aluminous earths and analogous 
substances. 

Quarries are deposits of building stone of all kinds, also beds 
of gypsum, brick, and pottery clay, cement rock, chalk, sand, and 
phosphates. 

When Placers and Quarries exist on the public domain they 
belong to the Nation, and mining rights may be acquired upon 
them through the law. But when occurring on alienated land 
they belong to the surface owner, and can only be worked with 
his consent. 

Mines and Quarries on the public domain may be worked only 
under the provisions of a grant from the Secretary of State, and 
under rules prescribed by the Interior Department. When 
they are on private land the consent of the owner must be 
obtained or, if that is not given, authority of the government 
coupled with provisions for a satisfactory indemnity to the 
surface owner. In the latter case the applicant for mining 
privileges is required not only to prove the existence of a mine, 
but also to show that it can be profitably worked. 

Prospecting is free to aliens as well as to citizens of the Repub- 
lic, but parties conducting exploratory work may be called upon 
at any time to prove that they are financially able to carry it on, 
and also to respond to a suit for damages. Before entering 
upon alienated land the owner thereof must be given a month's 
time to file objections to the application. 

The law provides no stated area for mining claims, nor pro- 
cedure for making locations. All such matters are arranged by 
direct negotiations with the authorities. No extralateral rights 
are allowed, and no conveyancing is possible without the consent 
of the authorities. The right to mine for one substance only is 






MISCELLANEOUS MINING LAWS 273 

convoyed by a permit. If others are found, now arrangements 
must, be made. 

Titles are maintained by an annual rental and a royalty on the 
gross output, and the amount of each is a matter of negotiation. 
Fairly continuous work is expected, and when the area under 
operation is on alienated land, the soil owner has the right to 
claim a portion of the output to be previously determined by the 
government, but not less than 5%. The normal term of a 
mining grant is one year, which, on the public domain, will be 
renewed indefinitely on the same terms as granted. If on private 
land the soil owner can refuse renewals, in which case the miner 
has the right to purchase at double the normal value. 

JAPAN 

(Law of 1890 as revised in 1900) 

The Nation claims the exclusive ownership of all deposits of 
gold, silver, copper, lead, bismuth, tin, antimony, mercury, 
zinc, iron, manganese, arsenic, iron sulphate, chromic iron, 
phosphates, graphite, coal, lignite, petroleum, natural gas, 
asphalt, and sulphur. All other mineral substances belong to 
the owners of the surface. 

There being practically no public domain, free prospecting is 
not allowable, excepting upon one's own land, and even then it 
must be confined (so far as nationally owned minerals are 
concerned) to an inspection of the surface. To explore to a 
further extent a prospecting permit is required, but must refer 
to a definitely described area. Anyone who has noticed indica- 
tions of the existence of ores of any of the substances mentioned 
in the above list, and who desires to inaugurate exploring opera- 
tion thereon must, even when he is the surface owner of the place, 
apply to the authorities (a Bureau of the Department of Agricul- 
ture and Commerce) for a permit, giving a correct description of 
the position and area of the tract desired. If he is the first 
applicant for the privilege it cannot be refused. When given, 
it is valid for one year, but an extension of the term is allowable 



274 INTERNATIONAL MINING LAW 

under certain particular conditions. While operating under this 
permit the explorer may realize on minerals found by obtaining 
the permission of the authorities, and upon the payment of such 
rental and royalty as would be due if the permit under which he 
is acting was one for mining. If, during the term of his oc- 
cupancy, application is made for such a grant, his prior right to 
the same is recognized. Otherwise it is given to the first appli- 
cant. Whoever makes the application is required to demon- 
strate the existence of the mineral which is the object of the 
search, within the boundaries of the tract asked for. 

The authorities, however, reserve to themselves, under the 
doctrine of eminent domain, the right to refuse the issue of 
prospecting permits and mining grants, and, without the right 
to appeal to the courts, to revoke and cancel any already issued 
if, in their opinion, the franchise asked for, or already granted, is 
considered or has proved to be " injurious to the public interest." 
To date this reservation of autocratic power has never been 
exercised unfairly or unusually, so far as can be ascertained. 

By an extension of this doctrine the authorities also reserve the 
right to direct work on a mining grant so as to conform to 
" necessary public interests." Annually a general approximate 
program of proposed operations must be submitted for approval, 
and when approved must be executed with a reasonable degree 
of approximation, under penalty of forfeiture of the franchise. 
In general this control relates only to matters affecting the 
comfort, safety, and health of employees, but it may go farther 
and specify the maximum and minimum tonnage production, 
the extent of new development required, and insist on other pro- 
visions having for their object the maintenance of the property 
and its appurtenances in good state of repair. 

Forfeiture automatically results when it can be proven that 
the grant was obtained by fraudulent representations during 
application, or when, to improve working conditions, changes in 
the boundaries of the grant are made and the grantee refuses to 
be governed by the change ; or when the ground rent and royalty 
are not paid promptly when due. 



MISCELLANEOIS MIXING LAWS 275 

The areas obtainable for prospecting or mining purposes in the 
case of coal cannot exceed about 500 acres, nor be less than about 
8 1 4 acres. For all other substances the size is about 25 acres. In 
shape all mining tracts must be rectangular. None carry any 
extralateraJ rights. But if, after operating some time, it becomes 
apparent that the ore body under development in its extension 
downward is liable or about to pass beyond planes projected 
vertically downward through any of the surface lines, the grantee 
can ask for a change in these lines, and the authorities have the 
power to make the change, provided the request is in their opin- 
ion reasonable, and does not injuriously affect the rights of others. 
Grants of both kinds must be registered, after which conveyanc- 
ing rights are complete. 

On all areas granted for prospecting purposes the holder thereof 
has the prior right to apply for a mining grant, provided he does 
so before his term expires. 

The mining grant, when issued, is of the nature of a perpetual 
franchise, at the option of the holder, incapable of annulment 
except for the three causes above specified, or under the doctrine 
of eminent domain. Prospecting and mining are prohibited 
within a distance of about 1650 feet from cemeteries or military 
or naval reserves; or within a distance of about 175 feet from 
public monuments, wagon roads, or rail roads, lakes, springs 
rivers or marshes, except by special permit. 

All surface operations which are objected to by the owner of 
the soil must be suspended until the authorities have investigated 
the circumstances, and either allowed them, or substituted some 
suitable modification; or the surface owner can be compelled to 
sell his rights to the mining operator, or grant an equitable lease ; 
or, finally, the operator can be compelled to give satisfactory 
security for possible damages or injuries to the premises or the 
business of the soil owner. All such matters must be referred to 
the authorities for arbitrament, and cannot be made causes of 
litigation in the courts. 

Surface owners cannot claim any interest in or royalty from the 
production of any of the metals or minerals specified at the begin- 



276 INTERNATIONAL MINING LAW 

ning of this digest. The State, however, collects two kinds of 
taxes or imposts, first a fixed annual rental of about 35 cents per 
acre, and second a royalty of 1% of the value (at the nearest 
market) of the output in any and all forms, excepting in the case 
of iron, which is exempted from all internal duties and imposts. 

MYSORE (BRITISH INDIA) 

(Law in force September 7th, 1916) 

The ownership of all precious metals and stones, and of all other 
mineral substances except granite, limestone, trap, kankar, 
sandstone, slate, quartz, laterite, and brick clay, wherever found 
within the province, either upon public or private land, is abso- 
lutely vested in the government except in the case of certain 
tracts where the mineral rights have been expressly granted 
to surface owners. On all areas so controlled the search for 
minerals can only be conducted by holders of licenses, and perma- 
nent mining operations by holders of leases. 

The government issues three varieties of licenses called respec- 
tively Collecting, Exploring, and Prospecting Licenses. 

The Collecting License applies only to precious stones and to 
the mineral corundum. It is good for one year but is renewable 
for additional terms of the same length at the discretion of the 
authorities. It conveys the right to search for, collect, and dis- 
pose of gems and corundum when found upon or within such 
a distance from the surface as is specified in the document. It 
covers any area agreed upon between the applicant and the 
government not in excess of that political subdivision of a District 
which is called a taluk, the size of which is variable but roughly 
approaches that of a township in the United States. The fee 
on application is S3. 20. In addition a deposit is also required 
of an amount set by the authorities in accordance with the con- 
ditions existing, which may vary from $10 to $100. It confers 
no exclusive rights but allows the searcher to work deposits 
found, and dispose of his product upon payment of a royalty 
of $2.75 per ton of 2000 lbs. of corundum and 30% of the net 



MISCELLANEOUS MINING LAWS 277 

profits on precious stones. These licenses are not transferable 
and do not allow explorations on ground already occupied for 
mining or any other purpose, and the searcher must apply for 
a permit to sell his product before putting it on the market. 

The Exploring License conveys the right (but not exclusive) to 
search for minerals of all kinds, and to do such digging and make 
such excavations as may be necessary to expose and remove 
any small quantities of substances found and desired for 
purely experimental or testing purposes, but with no right to 
realize upon the values of the same. Nor does it give any pref- 
erential right to claim a lease on a deposit of ore found, except 
such as may be recognized at the option of the authorities. Its 
term is one year, with no renewal right. But a new license may 
be granted if the government is disposed to do so. The maximum 
area allowable is that of a political District, which may be likened 
to that of a county in the United States. The fee on appli- 
cation is S3. 20. No deposit or surface rent is asked, and the 
government reserves the right to reject any application without 
cause, to limit the area as it may see fit, and also to confine its 
validity to any one or more minerals that it may select. This 
form of license is not transferable. If any precious stones are 
found the fact must be reported within ten days, the stones 
exhibited to the authorities, and a royalty of 15% ad valorem 
paid upon realization. 

The Prospecting License conveys full and exclusive mining 
and selling rights within the area it covers, and for the mineral 
or minerals specified in the document; and also the right within 
its term or extensions to select a tract not exceeding one square 
mile in size, and to call for a lease on the same. Its term is one 
year which, at the discretion of the authorities, may be renewed 
from year to year until in their opinion the holder has had suffi- 
cient time to make the selection with intelligence. The area 
covered by the license may not exceed ten square miles and 
should be as nearly a rectangle in form as possible, whose length 
is not more than twice its breadth. The fee on application is 
S3. 20 per square mile (or fraction thereof) of area included, in 



278 INTERNATIONAL MINING LAW 

addition to which a deposit of $32 per square mile is required, 
and a surface rental ranging from two cents to 16 cents per acre 
per annum, according to the discretion of the authorities. The 
royalties on substances disposed of are as follows: 

On gold and silver. No royalty is taken until operations show 
a net profit; thereafter 5% per annum of the gross sale value of 
the products, plus 5% per annum for each $125,000 of net yearly 
profits divided. 

On all other substances except corundum and precious stones, 
5% of the selling value at the mine. 

On corundum, $2.75 per ton of 2000 lbs. 

On precious stones, 30% of the net annual profits. 

Claimants under prospecting licenses may not use the timber 
on the surface without a government permit, but may erect 
such buildings and sheds as are required for economical temporary 
operations, and construct such roads and trails as may be neces- 
sary to secure access to their premises. 

Leases. The maximum term of a mining lease is 30 years, with 
one renewal of equal length at the option of the authorities, and 
on such new terms as they may prescribe. Its area cannot exceed 
one square mile laid out in rectangular shape, with length not 
greater than four times its breadth. In the case of alluvial 
deposits of precious stones or of any of the metals, the govern- 
ment reserves the right to limit both the area and shape in 
accordance with its own views of the necessities of each case. 
The fee on application is $32, and a deposit of $320 is also 
demanded. The surface rental is 32 cents per acre, per annum. 
The royalties are the same as in the case of minerals sold under 
prospecting licenses. In addition to these charges the authori- 
ties reserve the right to levy an impost called a "dead rent" 
wherever a leased property is not being operated as energetically 
or skillfully as, in their opinion, it should be. This may be as 
much as, but not more than, $1.60 per acre per annum. But it 
can be levied only when the royalty paid for any one year is 
less than what the dead rental would be at its maximum rate. 

All expenses connected with the issuing of a mining lease, such 






MISCELLANEOUS MINING LAWS 279 

as surveys, examination of title to the tract asked for, maps, 
etc., must be paid for upon delivery of the document, leaving 
the deposit of $320 as security for the prompt and accurate 
performance of the terms of the grant. There is finally a stamp 
tax to be paid upon the document itself, and a registration fee. 
Leases may be sold or encumbered upon obtaining the consent 
of the authorities, the payment of the transfer fee, and the 
registration of the document of conveyance. But the govern- 
ment reserves the right to refuse its consent, without cause. 
Operations must begin in earnest within a year from date of 
grant, and thereafter be continuous. All boundary monuments 
must be kept in repair. If the lease is on alienated land arrange- 
ments must be made with the owner thereof for all surface 
privileges required, but if harsh terms are asked the authorities 
on request will initiate expropriation proceedings in the courts. 
Complete accounts and working maps must be maintained. 

NIGERIA 

(Law of March 31st, 1916) 

In this British colony the government claims the exclusive 
ownership of mineral substances of all kinds, and wherever 
found within its borders; and, for the purposes of the law classi- 
fies them as Alluvials, Lodes and Minerals. The last is again 
divided into Metalliferous Minerals, Carbonaceous Minerals, 
Earthy Minerals and Precious Minerals. In the final division 
•are precious stones and the metals gold, silver, platinum and 
iridium. 

Prospecting Is Not Free. A license is required, and a penalty 
of $500 or 12 months' imprisonment is prescribed for any one at- 
tempting to add to the mineral wealth of the country without 
formal permission, together with confiscation of all material 
obtained. Natives however are freely permitted to explore for 
and appropriate to their own use iron ore, salt, soda and potash, 
when found on unoccupied land. 

Two forms of exploring permits are issued, called respectively 

19 



280 INTERNATIONAL MINING LAW 

" Prospecting Rights" and " Exclusive Prospecting Licenses." 
The first may be taken out by any individual — citizen, alien or 
native — who is over 18 years of age, can read, is of good character 
and can furnish satisfactory proof to the authorities that he can 
command sufficient capital or credit to carry on exploring work 
properly, and to respond to claim for damages that may accrue 
as the result of his operations. But the right is reserved by the 
Government to prohibit the search for any specified mineral at 
any time, by advertisement in the Official Gazette, which pro- 
hibition, when exercised, applies not only to- " Rights" issued 
thereafter, but also to all those at the time in force. 

These " Rights" are good for one year from date of issue, cost 
$25.00, are not transferable or renewable, and convey no permis- 
sion to remove and realize upon any material found. They confer 
the right to explore upon unoccupied public land and privately 
owned property, excepting in the first instance upon areas closed 
by official proclamation or included in an exclusive prospecting 
area, or has been declared a forest reserve. In the last case per- 
mission to prospect maybe obtainable from the local forest officer, 
upon proper guarantees. Each employee or partner of a pros- 
pector must also possess a " Right." 

The " Exclusive Prospecting License" is granted only to one 
who has first taken out a " Prospecting Right," and who has 
either personally or by an employee conducted exploring work 
upon the area asked for. The maximum tract allowable is 
sixteen square miles, but when the search is for precious metals 
or stones it may not exceed one square mile in area. The permit 
is good for one year and is renewable — at the option of the au- 
thorities — for three additional years in the case of an alluvial 
deposit, and for six in the case of lodes. The cost is $25.00 per 
square mile of area per annum, payable in advance, plus all costs 
connected with the necessary surveying and mapping. The ap- 
plicant is also again required to give proof that he has sufficient 
capital at his command to carry on work properly, and to respond 
to any damages that may result to private or government inter- 
ests. Such a license confers exclusive exploring privileges within 



MISCELLANEOUS MIXING LAWS 281 

the area granted, for the holder and his employees, provided the 
work is prosecuted continuously and to the satisfaction of the 
authorities, but does not allow of the removal or sale of material 
found, except of small quantities for testing purposes. 

When an alluvial deposit has been found by the holder of a 
prospecting license or right, and it is desired to operate thereon, 
the discoverer must apply for what is called a "Mining Right." 
This may or may not be granted, the authorities having full dis- 
cretionary powers in the matter. If granted, it is good for one 
year, and is renewable from year to year thereafter at the option 
of the Governor. The maximum area allowable is one mile in 
length of the bed or channel of the stream, by one hundred yards 
on each side of its center line. No survey is required, but the 
claimant must carefully stake all corners. A rental of $5.00 per 
annum for each one hundred yards of the length of the claim is 
payable in advance. On the product royalties range from 2}^ 
r c to 7M % on tin ores, are $1.00 per ounce on gold, and on the 
other precious metals 5% ad valorem. The conditions of main- 
tenance are " continuous and adequate operation." At any time 
during its term the government has the right to revoke the fran- 
chise upon 30 days' notice, in whole or in part, in which event the 
holder has a preferential claim for a lease on the area revoked, 
and for a new mining right on the balance. 

For all other varieties of mining operations Leases must be 
taken out. The maximum term permissible is 21 years, with a 
claim for one renewal of an equal length if the holder has been 
operating to the satisfaction of the Department of Mines, and 
can give proof that he is capable of continuing to do so. Be- 
yond this no further extension can be obtained. Leases may be 
sold or assigned with the consent of the authorities, and on pay- 
ment of a transfer fee. They may also be surrendered after 
giving six months' notice of the intent, the settlement of all legal 
claims which may exist at the date of abandonment, and the pay- 
ment of a surrender fee. 

The holder of a mining Lease has full right to remove and sell 
all minerals found and produced during its term. 



282 INTERNATIONAL MINING LAW 

Leases are of five different kinds, as follows: 

A. Metalliferous Minerals and Precious Metal Lode Leases. 
These can embrace an area not less than five and not more than 
fifty acres. The annual rental is about $2.50 per acre, and the 
holder may work and own any alluvial deposits on his area. 

B. Metalliferous Minerals and Precious Metals Alluvial 
Leases. The area of these may be from five to eight hundred 
acres, according to the nature of the deposit, its topographical 
features and the methods of operation that must be adopted. 
The rental is about $1.25 per acre. This form of lease confers 
the right to work only in the surface soil or debris. 

C. Precious Stone Leases. 

D. Carbonaceous Minerals Leases. 

E. Earthy Mineral Leases. 

For these three classes the areas obtainable, the terms and the 
surface rentals are (within certain limits) matters of negotiation 
between applicants and the authorities. 

Royalties are payable on all minerals and metals produced and 
sold as follows: On tin products, from 2% to 7^% according 
to the current price in London. On lead products, 2% to 5% 
ad valorem according to the silver contents. On iron products 
1% ad valorem. On gold, $1.00 per fine ounce. On other 
precious metals, 5 % ad valorem. On all other minerals and me- 
tallic products such rates as may be agreed upon between the 
authorities and the producers, or as may be fixed by future 
Regulations. 

The shape of all leases must be either rectangles or polygons. 
In the former case the width must not be less than 200 yards. In 
the latter there must be at least four sides and not more than ten. 
In all cases the boundaries underground are vertical planes pass- 
ing through the sides. Lessees have the right to work for and 
realize upon only such substances as are specified in the document. 
If others are found and it is desired to produce them, the authori- 
ties must be notified and the lessees must accept such regula- 
tions for their recovery and disposition as may be decreed by the 
Governor acting under the advice of the Department of Mines. 



MISCELLANEOUS MINING LAWS 283 

Maintenance depends upon practically continuous work with a 
force of not less than five laborers for every two acres in the tract 
in the case of a lode property, and the same number for every 
twenty acres in the case of placers. When operating on alien- 
ated land a royalty or rental for surface areas used can be 
claimed by the surface owner. The amount of this is largely a 
matter of negotiation, but the authorities reserve the right to 
insist upon its reasonableness according to their views in such 
matters. 

SIAM 

(Law of 1901, with amendments to Jan. 1st, 1917) 

The government claims the exclusive ownership of all mineral 
substances, upon, in or under the surface, and whether existing 
on the public domain or on privately owned land. 

Prospecting upon alienated land by the owner thereof is free 
for a term of ninety days, at the expiry of which — if it is desired 
to continue operations — a lease must be taken out. During the 
exploring term no mineral can be removed from the immediate 
vicinity of the place where it was found. 

When a discovery of any desirable mineral substance is made in 
the surface soil by anyone other than the surface owner, and it is 
desired to operate thereon, application must be made for a Mineral 
Washing License, which can be obtained at moderate cost, is 
good for one year and is renewable thereafter indefinitely at the 
option of the government at the same cost. It is not transferable. 

General Prospecting Is Not Free. Licenses are required. These 
are issued at small cost, are good for a year and cover an agreed 
area (generally one of the small political divisions). They are 
not exclusive, but confer the right to prospect over all parts of 
the region not already occupied by other prospectors or miners, 
and not in actual use for buildings, crops and fenced pastures. 
They are renewable from year to year at the option of the authori- 
ties, are not transferable, do not confer the right to remove or 
sell any mineral found and are good only for the individual to 



284 INTERNATIONAL MINING LAW 

whom they are issued. Additional licenses must be taken out 
for partners or assistants employed. 

An exclusive prospecting license is also obtainable, good for 
one year and renewable once at the option of the authorities. The 
ground desired — which cannot exceed about 1000 acres — must 
first be staked out. The applicant then presents a sketch plan 
to the chief local authority, together with the prescribed fee and a 
deposit in addition to cover the costs of identification, etc., and in 
due time if the applicant is considered to be a desirable party and 
the area is vacant the license may be issued. It conveys full 
exploring rights to the holder with the privilege of employing 
as many assistants as desired without any additional licenses, 
but confers no right to remove or realize upon any mineral found. 

For Permanent Operation A Lease Is Necessary. Application 
must be made in writing accompanied with a sketch plan of the 
ground desired, the prescribed fee and a sample of the mineral 
or minerals found and which it is expected to operate for. The 
applicant must give satisfactory proof of his technical ability to 
conduct mining operations in good style (or name a Manager 
with those qualifications) and must show that he can command 
sufficient capital. If the lease is granted, all its terms are matters 
of negotiation between the government and himself. A ground 
rental is charged which is payabfe semi-annually in advance. 
Royalties in varying amounts are payable on all material sold. 
Areas may not exceed about 33 acres for a lode claim and about 
100 acres for a placer or coal claim. Each tract must be rectan- 
gular in shape, orientated and with length not in excess of three 
times its width. A survey by a government engineer at the cost 
of the applicant is obligatory, and all monuments set during this 
operation must be maintained in good order. Maintenance of the 
franchise from year to year thereafter is dependent upon conduct- 
ing operations with reasonable energy and in ways satisfactory 
to the Department of Mines, whose constant supervision must 
be acknowledged. Within six months after the abandonment of a 
lease all buildings, machinery, ore or other property must be re- 
moved, or it becomes the property of government. Leases may 



MISCELLANEOUS MINING LAWS 285 

be transferred, but only with the consent of the authorities, and 
upon the payment of a stated transfer fee. 

BRITISH NORTH BORNEO 

The government claims the exclusive ownership of all minerals, 
whether found on or below the surface, and prohibits the search 
for them except by holders of a government license, under penalty 
of $500 or six months' imprisonment. No form of title exists 'for 
mining property except that of a lease. 

Licenses to prospect and leases to operate may be obtained 
from the authorities at Sandakan, the capital, and on generally 
reasonable and fair terms. They are largely matters of negotia- 
tion excepting in a few fundamentals, which are substantially 
those of the British India law. 



CHAPTER XIII 

The Prospector 

A mining law has for its purpose the attainment of two ends, 
namely, to secure the discovery of mineral deposits, and to en- 
courage and govern their development and operation. The 
first has to do with the occupation of prospecting, while the second 
is a matter of capital and mining engineering. As mines cannot 
be worked until they are discovered, it seems clear that the 
paramount object of a law of this class must be to stimulate the 
business of the prospector. 

This individual, as known in America, may be said to be en- 
tirely a product of its peculiar civilization. In dictionaries of the 
English language published prior to the year 1850 the word is 
not to be found. It seems to have become current first about the 
years 1845-50, when, lead ore having been discovered at Galena, 
Illinois, a number of the pioneers of the vicinity began to search 
the surrounding country for more of the mineral. These indi- 
viduals appear to have been called " prospectors " by a writer of 
the day. Shortly thereafter the gold discoveries in California 
were announced, which naturally drew all such characters to 
the Coast, where their line of activity was at once recognized as 
desirable, and the title appropriate. The idea back of it was a 
totally new one to the world, for it meant an individual who had 
been invited by the nation to explore the surface of the public 
domain for indications of mineral values of any kind. These, 
when found, if not on land already appropriated by another, 
became by the miner's law the exclusive property of the finder, 
to work or to sell as he saw fit. In a short time the occupation 
became entirely one of searching and finding, the idea of develop- 

286 



TILE PROSPECTOR 287 

meril being quite abandoned, so much so that the prospector 
ranked himself as above the status of the miner, and took more 
or less pride in the distinction. This professional feeling con- 
tinued, and still persists, although at the present time some of the 
craft are too lazy to be efficient explorers. In the beginning, 
however, the occupation was chosen and followed by men of real 
pioneering ability, although sometimes very illiterate, and in all 
parts of the western mining districts of the United States, and in 
Alaska, there still remain numerous vigorous, honest, and capable 
individuals of the class. 

Outside of the United States and Alaska the prospector, as so 
understood, does not exist. This statement can be made without 
reservation. The occupation is unknown in Latin America and 
in South Africa. There were hundreds of them at one time in 
British Columbia, but they have disappeared from that richly 
mineralized section of Canada. In the Yukon country they 
were present in large numbers when the Klondyke district was 
thought to be a part of Alaska, but they left when that famous 
region proved to be British territory. In all the remaining parts 
of Canada the prospector is notable by his absence. The business 
has never been heard of in Siberia. In Australia, Tasmania, and 
New Zealand, although many were in the field in the early days, 
none can be found now. 

The further statement can also be made with confidence that 
prospectors exist only in those parts of the United States that are 
under the provisions of the Federal mining law. For instance, 
though numerous in New Mexico, they cannot be found in the 
adjoining State of Texas, although the latter is known to possess 
great mineral resources. There are none in the Lake Superior 
copper and iron mining regions, nor in the zinc and lead fields of 
the Mississippi valley. 

The natural inference from these statements, if they cannot be 
controverted, is that the prospector is the child and product of 
the Federal mining law. If he is a desirable one it will be well 
worth while to ascertain what there is in that law that has pro- 
duced him, and keeps him after nearly 70 years of activity, still 



288 INTERNATIONAL MINING LAW 

a figure of importance and value. Can discovery proceed with- 
out his services? 

To a very limited extent discovery is in progress in British 
Australasia, but is practically at a standstill. In Latin America 
and Canada identical conditions exist. We hear of little from 
all these regions except the continued working of mines discovered 
30 to 50 years ago, or the reopening of "antiguas. " In the case 
of Canada a few new and important mineral districts have been 
found during recent years, but investigation reveals the fact that 
all of them were purely accidental strikes, made either by rail- 
road graders in the course of their day's labor (Sudbury and 
Cobalt), or by sportsmen when in the pursuit of game (Porcu- 
pine). Practically nothing new has been found in British 
Columbia since its law was changed in 1897. In Texas, though 
the State is offering liberal bounties for new discoveries, none are 
reported. Prospectors by the thousands are swarming all over 
Alaska, in spite of its severe climate, while across the line in the 
Yukon Territory of Canada no exploration is in progress. In 
fine, a careful examination of international conditions in the 
business of metal mining shows that in the matter of new dis- 
coveries the western United States and Alaska are the only parts 
of the world where advance has been steady and important from 
the first and still continues to be. Evidently therefore the 
American prospector is an asset of some importance and value 
to the nation. 

What then does the prospector require as an inducement to 
carry on his peculiar line of activity with energy? First he 
appears to demand freedom in its exercise. He carefully avoids 
all lands where a license is required, and those where the proc- 
esses of initiating and maintaining a title are complicated and 
expensive, and where no fee simple title is obtainable. But 
above all other circumstances that which seems to be most neces- 
sary to retain his services is the ability to locate a claim which 
has a selling value as a prospect, and which does not have to be 
developed to attain that quality. For he is not a developer. He 
is purely an explorer and finder, and cannot make a living in his 



77/ E PROSPECTOR 280 

profession unless he can dispose of his find on the basis of the 
nature of the claim he can record and maintain upon it. Such 
a nature seems to have been unconsciously conferred by the 
American Federal mining law when the doctrine of the apex and 
of extralateral lights for lode claims was incorporated in it when 
it was framed by the miners themselves. For this doctrine 
makes the vein or deposit the legal entity granted, while the 
surface tract is regarded merely as an appendage thereto, and 
gives the former to its discoverer in its entirety no matter where 
it may lead him. With this right assured it is not possible to 
locate along his side line and cut him off on the dip, nor is he 
compelled to go to the expense of locating a number of claims 
alongside of each other to protect himself. Hence, when he has 
found something of value he can command a fair price for it, 
for his title covers whatever there may be of it within his end 
lines and within the limits of practical mining operations. 

There are some who hold that the price paid for his services in 
the form of vexatious litigation due to the unbusinesslike habits 
and careless way of the average individual of the class is out of all 
proportion to the results realized from his undeniable pioneering 
ability. This view does not seem to be warranted by the facts 
in the case. Nor does it appear at all likely that the future will 
bring any recurrence of the turbulent days of old. For the mod- 
ern American prospector, while retaining the most of his desir- 
able characteristics, is not only a peaceful but a comparatively 
well educated individual, fairly posted in the requirements of the 
mining law as now interpreted by the courts, much more careful 
than his predecessors in carrying out their provisions, and gener- 
ally a respected member of the community in which he operates. 
This change is well displayed by the comparative quiet that reigns 
in Alaska, where at present his activities are most in evidence. 

There are others who assert that the apex and extralateral 
rights doctrine is inherently a fallacy, and never can be made to 
square with those basic and settled principles of jurisprudence 
that have to do with the matter of real estate titles. This may 
be so, but if it is, it is not the only fact or condition in the life of 



290 INTERNATIONAL MINING LAW 

today that is at variance with the foundations upon which the 
structure of modern law has been so painfully erected. It must 
be recognized that the mining industry is a very new line of 
human activity, and is still in a formative state. We know 
comparatively little about the crust of the earth. Yet added 
knowledge of its contents is clearly desirable from every point 
of view. How absurd therefore to impose the handicap and 
stigma of a license on the activity of those comparatively few 
individuals whose curiosity and optimism incline them to attempt 
to explore underground in ways and by acts which have come to 
be regarded as unwarranted if practised by other surface owners. 
If his methods are repugnant to the principles of the law, then 
perhaps it may be better for the general good that the law should 
change its aspect and point of view in this matter, than that the 
prospector should be compelled to abandon his useful, if at 
times most inconvenient, activity. 



CHAPTER XIV 

EXTRALATERAL RlGHTS 

Before considering the doctrine of extralateral rights in lode 
mining property on its merits, it will be both interesting and 
advantageous to study its history. For it is a doctrine of con- 
siderable respectability, if the matter of age alone confers that 
quality. It did not originate in the United States, as some have 
supposed. It was in operation as a well recognized and just 
principle in mining practice when Agricola published his famous 
work on mining in 1530, and apparently had been so for many 
centuries before that date. It was applied however, in those 
days, and in the German mining districts, only to that class of 
mineral deposits described by that writer as a "vena profunda,'' 
by which he meant a lode that had a well defined and continuous 
dip of importance into the earth; in short, what we now call — 
perhaps rather vaguely — a fissure vein. In all other classes 
of mineral deposits beneath the surface, which were summarized 
by him under the two names of "vena dilatata" and "vena 
cumulata," the miner was strictly confined in his operations 
within vertical planes extending downward from his surface 
boundaries. Whether the doctrine originated in Central Europe, 
where mining had been in progress ever since the beginning of 
the 7th century of our era, and probably for several hundred 
years prior to that date, or was an inheritance from Roman 
times, it is impossible to say. But because it is also found in a 
somewhat different form in the old Spanish mining laws, which 
certainly came down from Rome, it seems probable that its 
root was in the laws of that empire. 

In Agricola's time, and among the German miners, the claim 
unit was called a "meer," and consisted of a piece of land seven 

291 



292 INTERNATIONAL MINING LAW 

fathoms square, the fathom being six feet. To the discoverer 
of a new vein seven of these units, laid out in a string along the 
outcroppings, were allotted, as a reward. Thus his claim was a 
rectangle 42 feet wide and 294 feet long, and his right to posses- 
sion depended on continuous working by himself or a man in his 
place (except a total of 68 days throughout the year) and the pay- 
ment of one-tenth of his product of ore to the Overlord. As to 
his underground rights I can perhaps do no better than to quote 
Agricola's words verbatim, as given in the excellent translation 
by Hoover. 

"Of the width of every meer, whether old or new, one-half lies on the 
foot wall side of the "vena profunda," and one-half on the hanging wall 
side. If the vein descends vertically into the earth, the boundaries 
similarly descend vertically, but if the vein inclines the boundaries 
likewise will be inclined. The owner always holds the mining right for 
the width of his meer, however far the vein descends into the depths of 
the earth." 

Thus it will be seen that the practice in central Europe differed 
from the American doctrine in that it gave the miner 21 feet of 
vein and of country rock on both sides of the center of his vein 
at all points in its depths, whereas the American law confines 
the miner strictly within the limits of his vein walls after it 
passes beyond the vertical plane of his side line. 

In another detail also the two doctrines diverge, and as some 
hold that the American system was copied from the German, it 
will be interesting to note this difference. With us the claim- 
holder has the exclusive right in depth to all veins the top or 
apex of which lie within his surface lines. But in the German 
law the extralateral right of pursuit was given only to such 
of them as, outcropping within his surface lines, might be found in 
due time to unite with the vein upon which the original discovery- 
was made, and which alone was presumed to be given to its 
discoverer. 

It does not appear from Agricola's writings that the doctrine 
produced much litigation. Probably this was due to the fact 



EXTRALATERAL RIGHTS 293 

that all the mining operations of his day were conducted under 
rules and regulations prescribed by the local Overlord or his 
chief functionary for the industry, who was known by the title 
of Bergmeister. The powers of this official appear to have been 
very great, and his rulings almost final. It is likely that he 
settled boundary and underground disputes very summarily, 
and that the miners, being much in his power, and possessing 
little right of appeal to any higher tribunal, would perforce 
arrange most of their difference among themselves. 

In some manner the extralateral doctrine made its way to 
England, but to one part of it only, so far as I can ascertain. 
It does not appear to have bten current in Cornwall, probably 
because the mines there had all been discovered centuries before 
mining became an organized industry, and had passed into the 
possession of landed proprietors, who leased them on such terms 
as they saw fit, and often without much consideration of any 
rights superior to their own. In Great Britain the State, at a 
very early date, abandoned to the surface owner all underground 
rights, except as to gold and silver, which are still held to be 
" royal" metals. 

In a book entitled "The liberties and customs of lead miners 
within the Wapentake of Wirksworth" written by one Edward 
Manlove, and published in 1653, we learn that in a certain part 
(and perhaps all) of the Derbyshire lead-mining district, the 
miner had the right "to follow his vein in depth (within his 
end lines) wherever it led him." As the operations there at 
that time were conducted under the supervision of an official 
known as a "Barman" (evidently an anglicised version of 
Bergmeister) it seems probable that the district was discovered 
by German miners, or else organized under their advice, and on 
the basis of customs with which they were familiar in their 
own country. 

In Spain the doctrine appears to have been current in very 
ancient times, and at some period of mediaeval history to have 
been abrogated, and again later revived for the purpose of curing 
an evident injustice to the miner resulting from the doctrine 



294 INTERNATIONAL MINING LAW 

of vertical boundaries which had displaced it. For, under Title 
VII of the mining ordinances promulgated on May 22nd, 1783, 
we read as follows : 

"Experience having shown that the equality of the mine dimensions 
established on the surface cannot be maintained underground, where in 
fact the mines are chiefly valuable, it being certain that the greater or 
Less inclination of the vein with respect to the plane of the horizon must 
render the respective properties in the mines greater or smaller, so that the 
true and effective impartiality, which it has been desired to show to all 
subjects of equal merit, has not been preserved; but on the contrary, it 
has often happened that when a miner after much expense and labor, 
begins at last to reach an abundance of rich ore, he is obliged to turn 
back, as having entered on the property of another, which latter may 
have denounced the neighboring mine, and thus stationed himself with 
more art than industry. This being one of the greatest and most 
frequent causes of litigations and dissensions among miners, and con- 
sidering that the limits established for the mines of these kingdoms, and 
by which those of New Spain have been hitherto regulated, are very 
confined in proportion to the abundance, multitude, and richness of the 
metallic veins which it has pleased the Creator of his great bounty to 
bestow on those regions; I order and command that in the mines where 
new veins, or veins unconnected with each other, shall be discovered, the 
following dimensions shall in future be observed. 

"Sec. 2. — On the course and direction of the vein, whether of gold, sil- 
ver, or other metal, I grant to every miner, without any distinction in 
favor of the discoverer, whose reward has been already specified, 200 
varas (approximately 600 ft. taken on a level, as hitherto understood. 

"Sec. 3. — To make it what they call a square, that is, making a right 
angle with the preceding measure, supposing the descent or inclination 
of the vein to be sufficiently shown by the opening or shaft of ten yards, 
the width shall be governed by the following rule : 

"Sec. 4. — Where the vein is perpendicular to the horizon (a case which 
seldom occurs) a hundred level yards shall be measured on either side 
of the vein, or divided on both sides, as the miner may prefer. 

"Sec. 5. — But when the vein is inclined, which is the most usual case, 
its greater or less degree of inclination shall be attended to in the follow- 
ing manner. 

"Sec. 6. — If to one yard perpendicular the inclination be from three 



EXTRALATERAL RIGHTS 295 

fingers to two palms, the same hundred yards shall be allowed for the 
width, as in the ease of the vein being perpendicular. 

"Sec. 7. — If to the said perpendicular yard there be an inclination of 
two palms and three fingers, the width shall be of 1123^ yards; two 
palms and six. fingers, 125 yards; two palms and nine fingers, 1373^ 
yards; three palms, 150 yards; three palms and three fingers, 1623^ 
yards; three palms and six fingers, 175 yards; three palms and nine 
fingers, 1873^ yards; four palms, 200 yards. So that if to one perpen- 
dicular yard there correspond an inclination of four palms, which are 
equal to a yard, the miner shall be allowed 200 yards of width on the 
declivity of the vein, and so on with the rest. 

"Sec. 8. — And supposing that in the prescribed manner any miner 
should reach the perpendicular depth of 200 yards without exceeding the 
limits of his portion, by which he may commonly have much exhausted 
the vein, and that those veins which have greater inclination than yard 
for yard, that is to say, of 45 degrees, are either barren or of little extent, 
it is my sovereign will that, although the declivity may be greater than 
the above mentioned measures, no one shall exceed the square of 200 
yards, so that the same shall be always the breadth of the vein extended 
over the length of the other 200, as declared above. 

"Sec. 9. — However, if any mine owner, suspecting a vein to run in a 
contrary direction to his own (which rarely happens), should chose to 
have some part of his square in a direction opposite to that of his prin- 
cipal vein, it may be granted to him, provided there shall be no injury 
or prejudice to a third person thereby." 

From this last section it is evident that in Spain the extra- 
lateral right included all veins the apexes of which lay within the 
surface boundaries, and not only the principal vein, as was the 
case with the German law. Aside from this, however, here we 
have the doctrine approved as a natural right, but to a limited 
extent only, and made dependent (as to limit) upon a determina- 
tion of the dip of the vein as shown in the excavations made by 
the discoverer before marking out and recording his claim. 
As the excavation required was a shaft ten yards deep on the 
lode, not enough, according to our modern views for a correct 
determination of the true average dip, disputes between neigh- 
bors were inevitable, and frequently occurred. Some of these 

20 



296 INTERNATIONAL MINING LAW 

are touched upon very interestingly in Sec. 14, which reads as 
follows : 

"As it has been found that the license or permission of following a 
vein by working lower down, and within the vein, and having enjoyment 
thereof, until the owner himself has connected it with his own workings, 
is the most fruitful cause of bitter dissensions, litigations, and disturb- 
ances among the mine owners; and further considering that such intru- 
sion is more generally the result of fraud or chance than of the merit and 
industry of the person so intruding, and that the consequences thereof 
occasion, for the most part, nothing but serious detriment to, or the 
total ruin of, the two mines, and the two neighboring miners, to the great 
prejudice of the public, and of my royal treasury; I order and command 
that no mine owner shall enter the property of another, even though 
merely by continuing his own vein at a greater depth, but that every one 
shall keep and observe his own boundaries, unless he makes an agree- 
ment and stipulation with his neighbor, to be permitted to work in his 
property." 

As the Iberian peninsula has been the most productive region 
of Europe in metalliferous minerals ever since the days when the 
Carthaginians possessed it, and still holds primacy in this respect, 
it seems more than probable that the doctrine of equilateral rights 
existed there in the days when Spain was a new land, like the 
western United States in 1849, its terrain freely open to the pros- 
pector of the day, who perchance made his own laws, as did those 
of California, basing them on the fundamental theory that to 
the discoverer belonged — as of right — the thing he discovered, 
to wit, the vein, no matter where it led him. We may also per- 
haps hazard the guess that, as the country filled up with surface 
proprietors engaged in agriculture and stock raising, this right 
was gradually taken away from him; and, finally, that in the 
decree just quoted, that good natured and wise potentate, 
Albouss XI, desiring to encourage the industry of mining, which 
was beginning to languish for lack of new discoveries and because 
of the rush of miners to the newer and supposedly richer fields of 
New Spain, by making it more to their interest to search for 
undiscovered lodes; and yet, being unable or unwilling to com- 



EXTRALATERAL RIGHTS 297 

pletely upset the doctrine of land tenure that had gradually 
come to be regarded as fundamentally proper by surface owners, 
hit upon this limited procedure as a compromise between the 
two theories. If so, it was of the nature of a partial restoration 
of former acknowledged rights. 

In considering the doctrine on its merits, its antiquity is the 
first element that deserves attention. It is to be remembered 
that everywhere in the world the mining industry began either 
with discoveries resulting from the conscious and intelligent 
efforts of laboring men, or by accident. There are no records of 
mines found by scientists or professional men of any kind. Hence 
it is not difficult to believe that the doctrine originated among the 
actual discoverers of lodes and veins. It is, on its face, a develop- 
ment of primitive times, of regions free from landlords, and it 
gives expression to the idea that underground property should 
be regarded somewhat differently from that on the surface. 
Naturally the primitive miner knew little of the ways of veins 
and lodes of any kind, but the so-called fissure vein, when at its 
best, is a most regular and interesting specimen of nature's 
handiwork, and doubtless was considered as the normal manner 
in which metal-bearing ores should be found. We know more 
about such matters today, and yet no one has been able so far 
among the constructors of mining laws to formulate a substitute 
for the extralateral rights doctrine that will accomplish for the 
industry what it has already done. 

That such an unusual conception should involve difficulties 
hard to solve detracts nothing from its real merit. It is most 
positively advantageous to a community that any mineral wealth 
existing within its boundaries should be discovered, and while the 
mineralized lands still remain as public domain. The steps 
leading up to such results are laborious, and will only be under- 
taken by the laboring man. He is the one individual who will 
go out into the wilds and undergo the discomforts and hardships 
inevitably connected with exploratory work. Such people rarely 
have money to maintain themselves while sinking shafts or 
driving levels, and they will not and cannot engage in the occu- 



298 INTERNATIONAL MINING LAW 

pation of prospecting unless the community agrees upon a custom 
or law which gives them a proper reward for their efforts. This 
the extralateral doctrine does, when coupled with other provisions 
enabling discoverers to hold their finds until a buyer, or a partner 
with means is secured. A mere surface plot of an agreed area, 
even though liberal in its size, does not answer the need. But the 
right to follow the ore indefinitely does, because it is a lure to the 
man who has money and is inclined to risk it in development 
work. That this is true is amply demonstrated by a considera- 
tion of the history of mining districts in any part of the world. 
In modern communities, where unexplored mineral areas exist, 
and where the doctrine of extralateral rights is not in force, 
discovery, except by accident, does not take place. Witness the 
conditions throughout all of Latin America, of British Austral- 
asia, and British North America, in old Europe, Asia, and the 
settled parts of Africa. Nothing new is being found except by 
pure accident. All the metal coming into the markets of the 
world from Mexico, and from Central and South America, is 
being taken from deposits originally discovered by the pioneers 
of those lands. The same is true of the gold mines of the Trans- 
vaal, which did not attract the attention of capital until the out- 
crops of the reefs had been traced and worked in the crudest 
way for several years. Even then, after a careful examination 
by one of the most capable and widely known mining engineers 
of the day, the proposition was turned down, and it remained 
for an optimistic promotor without technical knowledge to 
demonstrate their value. 

It is perhaps necessary to admit that the doctrine cannot be 
defended except on the theory that it is of the nature of an 
inducement to search. The experiences in the old German 
mining camps, in western United States, and in British Columbia 
before its mining law was changed, show that it did produce 
discoveries, and continues to do so where retained. The expe- 
rience in Rhodesia yields no conclusions, for that field was already 
very thoroughly prospected before the white man took possession. 
On the other hand, the experience in Spain, where the doctrine 



EXTRALATERAL RIGHTS 299 

was in force on a limited scale for a time, and had practically no 

effect, shows that half-way measures do not succeed. This is 
confirmed by the results obtained in those modern mining re- 
gions, where extra wide, or large square, locations, without 
extralateral rights, have been on trial as a substitute, and have 
failed to attract the prospector. 



CHAPTER XV 

Discovery of Ore as a Prerequisite to a Valid Location 

Of the modern mining laws 37 require a discovery of mineral 
before a valid location can be made, and eight do not. In not 
one of them is to be found a reason for or against the requirement, 
and there is not always uniformity on the subject within the 
groups of laws. Thus, the laws of all Canada except New Bruns- 
wick, of British Australasia except Tasmania, of the South African 
group without exception, and of all Latin American countries 
except Mexico, Brazil, Peru, and Venezuela, require discovery, 
and many of the last group demand in addition that a sample of 
the mineral found be deposited with the authorities when the 
application for ground is made. British and French Guiana 
laws insist upon discovery as a prerequisite to location, while 
Dutch Guiana, situated between the two, and on the same 
mineral field, does not. In America the Federal law inferentially 
requires it, but in practice no proof of the fact is demanded unless 
non-discovery is alleged by a third party. Nothing is said on 
the subject in the Texas law. 

The insistence of discovery before staking is one of the most 
ancient doctrines of mining jurisprudence. In the old Spanish 
and German codes no vein location could be made until ore was 
clearly displayed between well-defined walls of country rock, 
and this rule persists in Spain and Portugal, and in many of the 
Latin American republics, but has been wholly eliminated in 
Mexico which, so far as the mineral industry is concerned, is the 
most advanced of its group. 

Since the invention of the percussion and core drill, permitting 
exploration in depth, discovery by this method has generally come 
to be considered as valid, and the drift of opinion among mining 

300 



DISCOVERY OF ORE 301 

operators has for some time been towards the elimination of sur- 
face discovery as a necessary basis for the initiation of a mining 
title, while a very respectable number go so far as to advocate the 
Mexican doctrine of requiring no discovery at all. It is now well 
recognized that many ore bodies have no surface outcrop. The 
position of some of these (predicated for geological reasons) may 
be determinable by the drill, while for others shafts and levels 
therefrom, or tunnels, or both, are necessary. It is therefore 
very reasonably argued that if an unoccupied or unused tract is 
desired for underground exploration purposes by anyone willing 
and able to push the same vigorously, the right to do so should 
be given, regardless of whether there are any indications of min- 
eral values on the surface or not. 

On the other hand it is not to be forgotten that the extralateral 
rights doctrine depends entirely on the existence of an apex, not 
necessarily on the surface, but yet within vertical planes passing 
through boundary lines; and that this doctrine, though considered 
by many students of the subject as undesirable and even danger- 
ous, is yet worthy of very careful consideration by broad thinkers, 
if for no other reason than because of the very successful and 
profitable industries that have developed under its provisions in 
each of the two notable mining regions where it is in force 
(United States and Rhodesia). Collaterally, the Mexican law, 
which gives no extralateral rights, calls for no discovery, and 
confers perpetual possession and usage on the sole condition of 
the payment of an annual ground rental should also be considered. 
Under its provisions a splendid industry has also arisen, and in 
the opinion of many mining engineers and operators its law is 
altogether the best in existence. 

But a study of the two iindustres that have grown up under 
these opposing and contrasting systems, and side by side in the 
case of Mexico and the western states of America, reveals some 
effects that should be noted. To reduce the field under investi- 
gation to narrower limits, let us compare conditions in the Ameri- 
can states of Arizona and New Mexico with those in the adjoin- 
ing states of Sonora and Chihuahua in Mexico. In both the 



302 INTERNATIONAL MINING LAW 

main industry is mining. Topographically, climatologically, 
and geologically the four cover practically one region. If there 
is any considerable difference in their mineral potentialities the 
balance is probably in favor of the Mexican half. Their areas 
are nearly equal. Historically the southern half is the older, 
and has been a mineral producing district the longer time. Yet 
the industry there has produced severe and continuous poverty 
for the great masses of the people, while across the line to the 
north it has resulted in widely distributed prosperity. Con- 
siderable allowance no doubt should be made on account of the 
racial differences between the two populations, but this will not 
account for the fact that while on the American side of the 
international line the most of the mines have been and are now 
owned by resident citizens of moderate and even small means, 
in the Mexican states the ownership has always been among a 
very few, and is now very largely concentrated in the hands of 
close corporations the most of whose stockholders are foreigners. 
Again, in the former, prospecting is active and new discoveries 
almost a continuous performance, while in the latter exactly 
contrary conditions in this respect prevail, though for the last 
half century or more exploration in Mexican mineral districts 
has been as freely open to aliens as to citizens. 

In requiring the discovery of mineral as a prerequisite to a 
valid location, the framers of the American law (as is well known 
historically) considered that he who found the outcrop of a new 
mine was entitled to its ownership, and should not be confined 
in its development and operation underground within narrow 
surface limits. They also held the complimentary view to the 
effect that he who could not produce an outcrop on the claim he 
had staked off should not be allowed the possession of it, if some- 
one more energetic, more intelligent, or even more lucky did 
find ore. 

To recapitulate: If promising mineral ground can be with- 
drawn from the public domain and passed into private hands 
simply at the cost of staking and recording, plus a nominal annual 
acreage rental, and even plus an annual development expendi- 



DISCOVERY OF ORE ' 303 

tare, without regard to surface indications or conditions, then 
the man with money to invest in land and its development has a 
decided advantage over the man with no capital but his labor, 
in the normal struggle between the two for possession of the 
earth. As against this it may be said that the capitalist has a 
right to such an advantage, and to deny him that right is — to 
such an extent — to discourage investment in underground ex- 
ploration. Per contra it can be urged that the curtailment under 
consideration has to do only with the quantity of land withdrawn 
without apprent cause, and should not affect development; or, 
to put the matter another waj^, that some limit should be placed 
to the area locatable without discovery, or, in lieu thereof, a 
higher annual rental or assessment requirement be demanded. 
It is generally recognized in all the existing mining laws that he 
who explores for low- value substances (coal, oil, gas, etc.) requires 
a larger field in which to operate if he is to have a fair run for his 
money, than one who searches for minerals of high commercial 
value, like one of the metals. Here the heart of the question is 
reached. The earth's available mineralized surface is of limited 
extent. The demand for a portion of it is steadily increasing 
with the advance of knowledge. Is it more conducive to the 
general good that its possession should be distributed among the 
many, or among the few? Experience in other classes of real 
estate indicates clearly that the first alternative produces more 
general prosperity than the second. It would seem, then, to 
follow logically that the right to the possession and usage of 
mineral land should be founded upon something more than the 
ability to pay normal taxes upon it. 



CHAPTER XVI 

Leasehold vs. Fee Simple Title 

The long-term leasehold system for the tenure of mining 
property, which is in effect in British Columbia, Nova Scotia, 
the Gold Coast and Ashanti, Egypt, and all the British Aus- 
tralasian states, either alone or in combination with the annual 
leasehold plan as a preliminary step, provides ample security 
for capital when the period is sufficiently long or when it carries 
reasonable renewal privileges, and when the annual rental 
required is a matter of not over 4% or 5% upon fair valuation. 
These conditions are complied with in the case of most of the 
above-mentioned States. The system has the added advantage 
of allowing the government not only to insist upon terms tending 
to secure the health and safety of employees, but to enforce 
the same with comparative ease; also, with great facility to 
collect periodically the statistics of the industry. 

The annual leasehold system, renewable indefinitely, on pay- 
ment of the annual tax, which is current in all the Latin- American 
countries, in British Australasia, Rhodesia, and several of the 
Canadian provinces, appears to work well, as far as it goes, 
especially where the laws provide for conversion at any time at 
the option of the claimant into long-term leases. Temporary 
protection is given to holders of small means at moderate cost, 
which is yet sufficient to cover the expenses of governmental 
administration, and to provide the time in which to decide, 
through preliminary development, whether or not the property 
can be made profitable, and to find a buyer or a partner if the 
cost of doing so is beyond the financial ability of the claimant. 

The monthly leasehold* plan, which is confined exclusively to 
the four states of the Union of South Africa, is a refinement of 

304 



LEASEHOLD VS. FEE SIMPLE TITLE 305 

the system which perhaps has not been long enough in operation 
to be fairly criticisable. On the face of it such a term should 
not be satisfactory to capital, yet under its provisions the im- 
mense gold industry of the Transvaal has been established and 
is being operated. In that state, and in the adjoining one of 
Orangia, the holder pays for his possessory title at the rate 
of about $40 per acre per year, a ground rental which the average 
claim on the Witwatersrand reefs will perhaps stand so long as 
native labor is available, though it is a rather heavy tax. For 
one of the American size (a little over 20 acres) it would amount 
to over $800 per annum, corresponding to 5% on a valuation of 
$16,000. This is far above the actual prospective worth of the 
vast majority of precious metal claims during their development 
period, and perhaps will explain why, in the two states mentioned, 
there is so little claim locating outside of the areas already proved 
to be mineralized. On the other hand, in Natal and the Cape 
Province, for an equal area, the annual tax is only $60 and $42 
per year respectively, the low rate probably having been made 
to encourage discovery. 

The theory of the leasehold system for mining property, as con- 
trasted with the fee simple system for all other forms of real 
estate, rests upon the evident fact that mines are properties 
which are steadily decreasing in potential income-producing 
ability as the extraction of ore proceeds, in consequence of which 
the time comes for all, either because of the exhaustion of the 
ore, or the inevitable increase of expenses in depth, when opera- 
tions must cease. For these reasons it is held that when mines 
are abandoned, possession should return to the community, 
so that the surface may be used for any other purpose for which 
it is suitable. 

The case for the fee simple title rests mainly on two arguments. 
The first, and by far the most important of these, is that the 
feeling of pride in absolute ownership of land is a sentiment 
which it is most desirable to cultivate and encourage, because 
it tends towards the growth and maintenance of individuality 
and independence, and in its effects upon a people is worth 



306 INTERNATIONAL MINING LAW 

all it may cost and more. The second is that an exhausted 
patented mine will inevitably return to the community in due 
time through the failure on the part of the owner to pay 
taxes. 

It will be interesting to note that in British Columbia, Ontario, 
Quebec, and Newfoundland the laws give the miner the option 
of a leasehold or crown grant. In the same connection it will 
be well to remember that the American Federal law accords to 
the possessory (unpatented) mining claim the exact legal status 
of a perpetual annual leasehold, so far as the government is 
concerned, and to the extent that its claimant is able to sustain 
his right in the courts as against his fellow citizens. 

The argument advanced by some opponents of the fee simple 
title, to the effect that it has a tendency to lock up a vast amount 
of ground in the hands of owners who are either unwilling or 
unable to develop, does not appear to be sustained by the facts, 
as the author has found them. On the contrary, the condition 
seems to be that owners of idle patented mining ground are 
generally eager to sell or lease if the opportunity to do either 
is offered. The case does not seem to be parallel in any way 
to that of the holder of unimproved lots in a growing city. But, 
assuming that the argument is sound, correction may easily be 
effected by a provision like that in force in the Canadian Province 
of Quebec, where the holder of a crown grant on a mining claim 
is still liable for annual assessment work; or by laws such as those 
in effect in several of the American States (notably Nevada) 
where a special acreage tax is levied on all idle patented claims. 

As an industry develops the laws under which it has grown 
up are constantly in need of revision or amendment. This is 
inevitable. The problem is to correct wisely, and after proper 
consideration of the effect in other parts of the world where 
regulations similar to those proposed have been in force. Any 
legislation that discourages personal ownership in land, and 
substitutes for it government or community ownership, would 
seem to be a step backward instead of forward, even from the 
point of view of the intelligent socialist. 



CHAPTER XVII 

Free Prospecting vs. Licensed Prospecting 

Following are the localities where free prospecting is permitted 
by the mining law in force : 

The western American States and Alaska. 

Texas. 

Manitoba. 

Saskatchewan. 

Alberta. 

The Northwest Territory. 

The Yukon Territory. 

Mexico. 

All the Central American States. 

All the South American republics except Brazil and Argentina. 

Cuba. 

The list of countries where a prospecting license is required 
is as follows: 

British Columbia. 

Ontario. 

Quebec. 

Nova Scotia. 

New Brunswick. 

Newfoundland. 

Brazil. 

Argentina. 

Haiti. 

British, Dutch, and French Guiana. 

Egypt. 

All the British Australasian States. 

All the British South African States. 

307 



308 INTERNATIONAL MINING LAW 

Rhodesia, Japan and all British Protectorates. 

The arguments for these two principles in mining law may be 
marshalled as follows: 

For Free Prospecting. — The real prospector is almost invariably 
a man of small means; and cannot afford the cost of a license; 
and when the document — as is often the case — confers the right 
to locate one claim only, the necessity of providing himself 
with several of them upon starting out on a prospecting trip, 
during which he anticipates making more than one location, 
is a burden which, in many cases, deters him from the enterprise 
altogether. 

The advantages accruing to a state through the discovery 
of such mineral resources as may exist on its public domain, 
before such areas pass under private ownership, are so great 
and so manifest that every obstacle in the way of the unrestricted 
privilege of search thereon should be removed. Equally great 
and apparent are the benefits to a community resulting from 
mineral discoveries made on alienated land before it is employed 
for uses which might forever bar search, or add materially to its 
difficulty, or make necessary the payment of heavy indemnities 
for possible or actual damages during exploration. 

There seems to be no inherent reason for subjecting such an 
occupation as prospecting to license. The prospector, to the 
extent that he is successful, adds to the resources of the country 
in which he operates, and his failures detract nothing from its 
wealth. In no way is his work dependent on or destructive 
of the advantages and facilities created by modern society. 

For License. — The cost of the license is so small as to be negli- 
gible in the majority of cases. 

It is most desirable for the authorities to be able to keep track 
of the prospector and of his activities, and this is possible only if 
he is under license. It is an advantage to be able to know at all 
times how many of the fraternity are in the field, where the 
majority of them are exploring, and what progress is being made 
at any given time or place. It is not conductive to orderly 
growth and progress in the business of exploration to have it 



FREE PROSPECTING VS. LICENSED PROSPECTING 309 

in the hands of wholly unknown and irresponsible parties, or to 
have the country dotted with claims the status of which it is 
difficult to ascertain. 

Most of the mining laws of modern origin (enacted, say, 
during the last 30 years) afford internal evidence of having been 
framed by lawyers, and without much — if any — collaboration 
of men who have had personal experience in the business of 
mining. The result in those cases has been a lack of proper 
consideration of that department of the industry which has to do 
with the matter of discovery, and over emphasis of that relating 
to development and operation, the one being neglected and the 
other hampered with unnecessary form and ceremony. In 
particular, the business of discovery, the steps that lead up to 
it, and the conditions under which it occurs, have been extensively 
misunderstood. The prospector has been regarded as an in- 
dividual of more or less means, of more or less scientific knowledge 
and training, and as one who at slight personal expense or 
discomfort goes forth into the unoccupied parts of the land 
and siezes a part of it without giving much value to the commu- 
nity in return. The occupation thus comes to be considered as a 
privilege, of much the same nature as that of the hunter and 
fisherman, and for which it is no more than right to exact a license. 
This view is the only one that will explain the very heavy penal- 
ties imposed in a number of the most modern mining acts on 
individuals found exploring for mines without due permission 
from the authorities. That the conception is totally erroneous 
is easily capable of demonstration. Nothing proves it more 
conclusively than the frantic governmental offers of rewards 
for new discoveries in those lands from which, by license demands, 
the pioneering class have been driven away or compelled to 
adopt other means of gaining a livelihood. The real fact is 
that the individual of an exploring proclivity is one of the most 
valuable assets a new country can possess. Instead of asking 
him to pay for the right to exercise his peculiar faculty, we should 
encourage him in every reasonable way to give it full play. 
If we are misled by his frequent disregard for the conventionalities 



310 INTERNATIONAL MINING LAW 

in language, dress, and personal habits, we might as well com- 
plain of the same in the farmer and the laboring man of all classes. 
Furthermore, his services cannot be bought in the ordinary 
way. All efforts to stimulate discovery by cash or other kinds 
of rewards have everywhere failed. The man of true prospecting 
spirit is too erratic and too improvident (some might say too 
artistic) to work for hire. He wants only what he can find. 
He should be welcomed in every mineral region with a brass 
band, and given the freedom of its limits. 



CHAPTER XVIII 

Prospecting Areas 

These are obtainable in a large number of mining countries. 
The theory upon which they are based is that if an individual or 
company with means wishes to conduct exploring operations 
upon a large and scientific scale, to locate suspected mineral 
of which there are no direct indications on the surface, or to open 
up a deposit already discovered but neglected, with the view of 
ascertaining if it can be made payable, the opportunity to do so 
should be encouraged by the temporary exclusive grant of a 
good sized tract of land, with the right, within a reasonable 
time, of selecting a smaller tract from within it for permanent 
operations. 

There would seem to be no reasonable objections to the plan in 
cases where there are no certain indications on the surface of 
mineral values below, or where the ground had already been 
looked over by the individual prospector and recognized as too 
unpromising for his method of operation. Coal, oil, gas and 
many other desirable mineral substances may often be inferred 
with great certainty, for geological reasons, under areas com- 
pletely free from all surface indications of them, and wholly be- 
yond the reach of the pioneer mineral explorer. The same is occa- 
sionally true in cases of metalliferous deposits. Many instances 
also are known where outcropping veins and segregations, too 
low in value or too scattered in disposition to attract the pros- 
pector or induce preliminary exploration by him, have been 
successfully developed into mines of great value by means of 
well directed capital. 

But experience in those countries where such areas are obtain- 
able shows that unless much care is exercised in granting them 
21 311 



312 INTERNATIONAL MINING LAW 

unfortunate results may easily follow. Unless the grant is 
clearly recognized as a privilege which should be liberally paid 
for by the recipient, the individual explorer who has not the 
means to take advantage of it is liable to be discouraged in his 
line of activity, particularly if the area reserved from his inves- 
tigation is large, or has not previously been accessible to him. 
Of course, in lands where the prospector has never existed this 
objection has no force, but where free prospecting is allowed 
it has much weight. It cannot be too strongly emphasized that 
everywhere, either at the beginning of the mining industry, or 
at some time later when new discoveries are needed to keep it 
alive, the pioneer explorer is an absolute necessity, and should 
be given his opportunity before much ground is locked up in 
State, National, or private reserves of any kind. 

In countries where prospecting licenses are required, and where 
the business of mining is suffering because of the lack of new 
discoveries, instead of trying to stimulate exploration by rewards 
of money, or of large claims, or other special privileges, all of 
which devices have so far proved futile, it would be an interesting 
experiment to throw open for a year or longer a tract of the public 
domain of good size as an absolutely free public prospecting 
area, under conditions and rules that would give the explorers 
such right to acquire property as has proved successful in attract- 
ing their services elsewhere. If, for instance, such tracts were 
widely advertised as to be thrown open for one or more years, 
it seems probable that prospectors would pour into them and 
give them such a preliminary surface examination as could be 
secured in no other way. That is the kind of prospecting area | 
that would be of the largest public benefit, because it would 
probably result in a number of discoveries, several of which 
might later become the foundations of extended development 
by capital. A prospecting area for the prospector himself would 
be simply a return to the condition of the " early days" in every 
part of the world where notable mineral discoveries have been 
made. 



CHAPTER XIX 

Defects and Deficiencies of the American Law 

In the opinion of the author the two most important deficiencies 
of the American law are, first, that it applies only to a part of the 
Union and, second, that it makes provisions for the discovery and 
operation of mines on only the unoccupied public domain of the 
nation. 

The first could probably be cured without much difficulty 
except in the case of the State of Texas, but as it now stands it 
would have small application east of the Mississippi Valley 
where but little public land still remains. 

To make its provisions apply on privately owned and State 
lands will call for a reconsideration of our whole doctrine of 
land tenure. What can be and has been accomplished in auto- 
cratic European countries as well as in some of those under 
liberal parliamentary rule along this line, will be effected with 
considerable difficulty in a pure democracy. Yet the time must 
come when the nation, having regard for the probably enormous 
undiscovered metallic wealth in the older states of the Union, 
will have to face the question and solve it. The experience in 
the British Isles, from which country we have inherited our ideas 
of the nature of real property, and where all attempts to bring 
about modifications of the doctrine held have so far failed, in 
spite of the fact that everywhere else in Europe changes have been 
effected, is an indication of how difficult it will be for us to alter 
our views even now. 

Meantime it should not be so hard to take steps towards that 

end in those states where the Federal law now applies, and it is 

full time to move in that direction. Already vast areas in the 

far West have passed out of the control of the people in the form 

313 



314 INTERNATIONAL MINING LAW 

of grants to railroad corporations, ostensibly of land suitable only 
for surface occupation and usage in agriculture, grazing, forestry, 
etc., and also granted with a special reservation of all mineral 
rights except those of coal and iron; but which the grantees or 
their assigns are now holding under the same theory by which 
real estate is held in the older parts of the country, namely, 
that ownership of the surface carries with it ownership of every- 
thing vertically underneath it. 

It will be impossible to discuss here the legal aspects of this 
question, but simply to call attention to the fact that in all parts 
of the civilized world except in the British Isles and in the United 
States this doctrine has been virtually abandoned, and in its 
place has been substituted the theory that the unexplored subsoil, 
being "res nullus" belongs either to the national sovereign in the 
case of autocracies, or to the Nation in countries under parlia- 
mentary governments. This will be made clear by examining 
the digests in this volume. Further it will be interesting to note 
that everywhere, except in the United States and four of the 
Canadian provinces, the sovereign or the nation as represented 
in its legislature, refuses to give fee simple title to the under- 
ground. Instead, the right of possession and usage is offered 
under some form of lease, either for a month, a year, or a term 
of years, or in perpetuity, in all cases dependent on some form 
of monthly or annual rental, default in the payment of which 
automatically causes forfeiture of the right. 

In the matter of placer claims new legislation is much needed. 
As the law now stands, if no veins or other forms of mineral 
deposits in rock in place have been discovered within its lines 
by the time a patent is granted, the deed from the government 
passes fee simple title to all that may hereafter be found. This is 
obviously an unwise provision, having the effect of withdrawing 
the ground from under-surface exploration except by its owner, 
while the grantee acquires more than the locator asked for or 
expected to get. The Land Office should be authorized in such 
cases to issue a patent in which undersoil minerals are expressly 
reserved. On the other hand, when that form of claim is used 



DEFECTS OF THE AMERICAN LAW 315 

to acquire beds of coal, pools of oil, reservoirs of gas, or deposits 
of other substances supposed to exist because of surrounding 
geological conditions, the fee simple title to the same should 
ultimately pass to the individual or corporation that had the 
energy and enterprise to explore and discover. The author is 
not in favor of substituting leases in such cases, no matter how 
favorable their terms might be. It is true that this is the 
solution of the problem adopted almost everywhere else in such 
cases, but that does not necessarily prove it to be the best one. 
The general effects of leasehold titles on the individual and the 
community should be taken into consideration. This has been 
pointed out in Chapter XVI, and nothing further need be said 
here on the point. 

Many of the most glaring deficiencies of the American law 
have been corrected by the various State laws, and some of the 
difficult situations that have arisen under the doctrine of the 
apex have been overcome by the consent of the community where 
they originated to ignore the letter of the law. This is one of 
the most interesting developments in the evolution of democracy, 
and has a generally true bearing on the science of jurisprudence. 
Just as, in the matter of frauds, it is impossible to enumerate 
all that may be invented or attempted, hence making it very 
difficult to exactly define the nature of the offense, or prescribe 
adequately in advance the punishment that should always follow; 
so, in the case of laws framed to govern operations upon the 
infinitely varying forms in which ore deposits have been disposed 
by Nature in the crust of the globe, there will be found, from 
time to time, conditions that have not been contemplated in the 
law, no matter what its class may be, and that are beyond its 
powers to solve with perfect justice. Because this must inevi- 
tably be so, it does not follow that a doctrine conferring equity 
in the vast majority of cases should be set aside because it 
fails completely in a small number of them, and then must be 
decided by the commonsense of the people acting outside of the 
letter of the law. 

The costs connected with the process of patenting mining 



316 INTERNATIONAL MINING LAW 

claims are larger than they should be. This is mainly due to the 
fact that the procedure that has been prescribed is so unneces- 
sarily complicated and antiquated that the services of a lawyer 
are generally required. This defect can be cured without legis- 
lation. The preparation of patent papers should be placed in 
the hands of the local land office officials, and no charge made for 
the work. Advertising and surveying costs should be reduced, 
also the price of the land, and payment for the same by install- 
ments should be made possible. 

There is need of legislation in connection with tunnel rights. 
There is nothing in the law providing for their reversion to the 
public domain after abandonment. Many enterprises of this 
kind, started for drainage, transportation, or discovery purposes 
have been idle for years, with owners dead or unknown, or unable 
to continue work or even keep up repairs. For such property 
it is often impossible to obtain clear title, or to compel the record 
owner or his assigns to resume work or to sell at a reasonable 
price. In the matter of mill sites the law should be changed so 
that only surface rights could be obtainable under that form of 
claim. 

The author is not in favor of the abolition of the apex and 
extralateral rights doctrine for reasons given in Chapter XIV, 
but can see good cause for modifying it so that the right would 
attach only to the vein or deposit first discovered, and upon which 
the location was made, the pursuit of all other veins subsequently 
found to be limited by vertical boundary lines. This would be 
no hardship on the original discoverer, and would simplify matters 
greatly for adjoining owners. Discovery by borehole should be 
distinctly legalized. 

The rules for the staking of claims could be much improved 
without legislation, and without adding unduly to the obligations 
of the prospector. The method prescribed in the French Guiana 
law for this act is worthy of consideration, as it not only tends 
to the installation of monuments of much greater permanency, 
but makes their removal or migration a matter of greater diffi- 
culty. Several of the Canadian provinces have most excellent 



DEFECTS OF THE AMERICAN LAW 317 

rules for this act, which is generally very carelessly performed by 
the American locator, entailing uncertainty or confusion later 
on if clearly defined original lines ever become of importance. t 
In all changes that may be made in the Federal law the pros- 
pector and the miner should be given the opportunity to express 
themselves. There are plenty of men who are now or who have 
been in the past actual explorers and diggers, with ideas worth 
listening to, and with the ability to state them. It should not 
be forgotten that the law as it now stands was framed by just 
such people, and that for nearly 70 years the industry has been 
operated under its provisions with magnificent results. It is 
their right to be consulted, and it will pay to listen attentively 
.to what they may have to say. 



CHAPTER XX 

Miscellaneous Historical Notes 

In Canada mining began in 1857; in British Columbia, which 
was first entered and explored by the pioneers who poured into 
California, in 1849 and 1850, and who, from San Francisco and 
Portland as bases, spread up the coast and into the interior 
everywhere in search of gold. One of the great alluvial centers 
discovered during this movement was known as the Caribou 
district, around the head waters of the Frazer river. In 1863, 
when at its best, this field yielded nearly $4,000,000 in gold. 
From that maximum the output steadily declined until in 1893 
it amounted to less than $400,000. During the years of depres- 
sion the prospectors that still remained in the country, reinforced 
by others from Washington, Idaho, and Montana, swarmed 
over the region, and a great number of lodes and deposits of 
silver, lead, and copper ore were discovered, as well as some 
carrying more or less gold, so that by 1900 the output of the 
first two metals was amounting in value to nearly $5,000,000 
per annum, while that of copper had reached $1,750,000. 

During this period of discovery and development mining was 
conducted under District laws practically identical with those 
of the United States, but in 1897 they were repealed, and in their 
place a law was enacted based largely upon the principles adopted 
in eastern Canada. 

In 1887 nickel ore was discovered by railroad graders at 
Sudbury in the western part of the province of Ontario. In 1897 
very rich alluvial gold deposits were found by American pros- 
pectors in the valley of the Klondyke river and some of its 
tributaries. The region was at first thought to be within the 
limits of Alaska. When that was shown to be an error, prospect- 
ing ceased. 

318 



MISCELLANEOUS HISTORICAL NOTES 319 

In 1905 railroad graders discovered the silver lodes of Cobalt 
in the northern part of Ontario, and in 1909 the Porcupine gold 
district was found by hunters. All three became notable in 
the production of the metals named and still continue so, except 
the Klondyke, where the cream has been skimmed and the 
country is now in the hands of dredging companies who are 
maintaining a handsome though steadily decreasing output. 
No lode mining of any importance has come into existence in 
this region. 

During the quarter century which witnessed these three 
important discoveries the regions in which they were made were 
operating under the provisions of a general Dominion Mining 
Law which clung — with slight modifications — to the general 
principles enunciated in the British Columbian law of 1897. 

In Australia gold mining began in 1851 in the provinces of 
New South Wales, Victoria, and South Australia, and by 1858 
the industry had spread into Queensland, Tasmania, and New 
Zealand, and by 1892 into Western Australia. Mining for other 
metals did not become important until 1882, but by 1891 had 
exceeded the gold output in value, and has maintained this 
prominence ever since. 

In the early days of the industry in all these British colonies 
except Western Australia, the only law that existed was in the 
form of District regulations enacted by the miners themselves, 
which had to do mainly with alluvial gold deposits, and were — 
in the main — very similar to those which originated among 
the miners in California. At first these were of the simplest 
kind, but auriferous quartz veins were quickly found by the 
prospectors, who then (in 1858) added to their rules the American 
doctrine of the apex and extralateral right, applying it to all 
forms of mineral deposits occurring in rock in place. As in 
America, the practice produced much litigation, and instead 
of holding to the principle the Australians decided in 1866 to 
abandon it. 

In considering the beginnings of mining law in these colonies 
it is to be remembered that, unlike the conditions that prevailed 



320 INTERNATIONAL MINING LAW 

in western America at the time of the California gold discoveries, 
where the country was entirely unoccupied except by Indians 
in the interior and Mexicans along the Coast, Australian settle- 
ment by whites began in 1788 with the establishment of a penal 
colony at Botany Bay, in what is now the province of New South 
Wales, and that during the years between that date and 1858 
very considerable areas had been granted to individuals and 
corporations for agriculture, grazing, and coal mining purposes. 
As parts of these areas proved, in the years between 1851 
and 1858 to include not only very rich alluvial gold deposits, 
but regions highly seamed with gold-bearing quartz veins, 
the doctrine of the apex had to contend with many conditions 
not found in California and other parts of our West. For while 
in some of their grants the government had definitely reserved 
in the deeds the undiscovered but suspected minerals underneath, 
and in others had as definitely granted them, in perhaps the 
majority of cases the subject was not referred to at all, or else 
in so ambiguous and indefinite a way as to require adjudication 
in the courts. Hence the doctrine added a new difficulty to a 
problem already sufficiently complicated, and when it was aban- 
doned in 1866 the reason was, confessedly, more to relieve the 
industry from a possible heavy load of future litigation, than to 
eliminate any other bad effect already produced. In fact, while 
it was in force, this doctrine caused, as was the case in America 
and western Canada, an era of intense and vigorous discovery, 
and when it was abandoned this era came to an end (as has been 
the case in British Columbia) , although in Australia the prospec- 
tors continued active for a number of years in those parts of the 
continent where little or none of the land had been alienated 
for agricultural or grazing purposes, and brought in several new 
districts of importance, the most notable of which was that of 
Kalgoorlie in Western Australia. 

The settlement of New Zealand began in 1840. The first 
discovery of gold took place in 1852 near Coromandel, but was 
of small importance. In 1857 the metal was found in payable 
quantities at Nelson, and in 1858 a specific gold field act was 



MISCELLANEOUS HISTORICAL NOTES 321 

promulgated, which was largely modelled on the miners' rules 
then current in Australia, and included the apex doctrine. The 
output from this district was also small and did not attract the 
attention of the outside world until 1861, when the Otago fields 
were found. This was followed in 1863 by the discoveries at 
Marlboro, and in 1865 by the opening of the West Coast diggings. 
About this time attention was drawn toward quartz mining, 
and as the alluvial deposits one by one gave signs of exhaustion 
and passed into dredging propositions, the need of a code of 
laws to cover the necessities of underground operations was felt. 
Hence, in 1877 a general mining law was enacted in which the 
apex doctrine was abandoned, and the general principles in effect 
by that time in Australia were adopted. In 1866 a special law 
was passed covering the mining of coal and Kauri gum. From 
time to time since then alterations and amendments have been 
enacted at almost every session of the colonial parliament. 

Tasmanian settlement by whites began in 1803 by the arrival 
of 400 English convicts at the mouth of the Derwent river at 
the southern end of the island and the foundation of Hobarts- 
town, which became the capital of the colony. In the following 
year another company of convicts was landed on the northern 
coast, resulting in the establishment of the city of Launceston 
at the head of the estuary of the Tamar river. By 1852 when 
gold was first discovered, the population of the island had in- 
creased to 50,000 and considerable areas of public land had been 
alienated. Prior to 1837 no grants contained any reservation 
of minerals, but in that year the authorities began the reservation 
of gold and silver. When gold production commenced the Gover- 
nor issued a proclamation declaring that all kinds of gold deposits, 
whether alluvial or quartz, and whether on the public domain or 
on alienated land, were the property of the government, and if 
mined without license would result in criminal prosecution. In 
1859 the first goldfield act was promulgated, and in 1862 the law 
was amended so as to include all minerals. In this law, and in 
those that have since been enacted referring to the mining in- 
dustry, the fundamental principles of the existing Australian 



322 INTERNATIONAL MINING LAW 

system were adopted, and since then no mining rights other 
than leaseholds have existed, while practically all freehold titles 
that had previously been acquired have, by forfeiture or con- 
demnation, returned to the government. So complete has been 
this process that Tasmania, of all the dependencies of the British 
Empire, is today the most perfect example of the results pro- 
ducible by the system on the mining industry. 

Under this law and regime development lagged in the colony 
except in those places where alluvial gold had already been found, 
and as these proved of small area and but moderately productive 
as compared with the Australian and American fields the pioneer 
explorers rapidly drifted away. However, a revival of activity 
took place in 1871 with the accidental discovery of the Mt. 
Bischoff tin deposits, and again in 1882 and 1886, when the silver- 
lead mines of Zeehan and the copper mines of Mt. Lyell were 
discovered. None of these have been followed by other finds 
of importance in the same vicinity or elsewhere, and on the 
whole the industry has declined markedly in importance during 
late years. 



CHAPTER XXI 

Conclusion 

It is impossible to study the mining laws of the nations without 
coming to the conclusion that many of them have been framed 
by individuals better acquainted with the business of legisla- 
tion than with that of finding and developing mines. This is 
particularly true of nearly all the British laws, and is very much 
less the case among those of the Latin-American class. The 
most notable instance of the contrasting results produced by the 
two methods of construction is perhaps that of the American 
Federal mining law as compared with that of the British South 
African dependency of Rhodesia. The former was framed by the 
miner and explorer, without the aid of either the lawyer or the 
mining engineer; the latter by the lawyer and engineer without 
any signs of assistance from the practical miner. 

As discovery and preliminary exploration must precede per- 
manent development and operation, the method that seems to 
have been generally followed should have been reversed. But 
laws referring to specialized industries have usually been drawn 
by legislators rather than by operators, and have been brought 
into workable condition thereafter only by long processes of 
amendment. It has been the good fortune of America that its 
law was drafted by miners, and the results that have been at- 
tained under it would seem to indicate that, in the main, their 
work was commendable. This is not to say that it is perfect and 
cannot be improved, or that many of the others produced under 
opposite conditions are all wrong in principle. Had there 
been a lawyer or two among the California pioneers to put the 
ideas of the latter into clearer phraseology, or an engineer or 
two to explain what was known in those days of the forms of 

323 



324 INTERNATIONAL MINING LAW 

ore occurrences, it is quite possible that much subsequent grief 
might have been avoided. 

In the digests presented in this volume very marked contrasts 
will be found in methods aiming to bring about identical ends. 
The farther back one looks into the history of mining the simpler 
the rules, regulations, and customs are found to be. This, of 
course, points to times when the unoccupied public domain of 
each community was large, the mining class small, the demand 
for the precious metals for coinage purposes insistent, and that 
for the base metals limited mainly to what was required for 
weapons. That was the real golden age of the miner; and the 
frequently frantic call on his fraternity for more gold and silver 
by the Lords of the Middle ages, and for more iron by the 
fighting class of the same period indicate the extent to which, 
even in those primitive days, the world was dependent on him 
for the tools and appliances of progress. 

To-day mining is one of the great activities of civilization 
ranking next to agriculture among those having to do with the out- 
put of raw material. If we consider only the production of metals 
it might perhaps be advanced to the first place as a source of 
new wealth. For while the foodstuffs raised by the farmer this 
year are practically all eaten up by the time the next harvest 
has matured, all the coal, oil, and tobacco burned up, and all 
the cotton, wool, and silk well on the way to being worn out, 
it is not so with the metals. Zinc and lead in the form of paint 
(their largest use) have a life of at least five years, while in other 
forms their term of endurance must certainly be rated at double 
that figure. Iron, when converted into tools, machinery, struc- 
tural shapes, etc., not only has a still longer life, but becomes 
capable of earning money in the form of interest and rental for 
its possessor. Copper and tin persist through a yet lengthier 
term of active existence before they disappear. Gold and silver 
as coin endure until they are lost. Probably some of the yellow 
metal that was employed in gilding Solomon's Temple at Jeru- 
salem, and more or less of that won from the sands of the river 
Pactolus by the slaves of Croesus, is in circulation to-day. A 



CONCLUSION 325 

million dollars' worth of the ordinary metals may be regarded — 
from the point of view of accumulating wealth — as the equivalent 
of from $5,000,000 to $25,000,000 worth of grain or meat, while 
that amount of the precious metals would then certainly be 
as valuable as $100,000,000 worth of foodstuffs. 

Taking the figures of the year 1913 as a basis, to avoid the 
unnaturally high prices produced by the war, the value of the 
world's annual crop of the common metals may be stated in 
round figures about as follows : 

Gold $460,000,000 

Copper 337,000,000 

Silver 171,000,000 

Zinc 150,000,000 

Tin 123,000,000 

Lead 109,000,000 

Platinum 13,000,000 

Nickel 12,000,000 

Mercury • 6,000,000 

Total $1,381,000,000 

This annual crop comes into the market from its various 
sources of production in about the following amounts: 

From the United States $424,000,000 

Europe 240,000,000 

South Africa 203,000,000 

Latin America 162,000,000 

Australasia 119,000,000 

Canada 59,000,000 

Rest of the world 174,000,000 

Total $1,381,000,000 

From this analysis of the subject it is not difficult to under- 
stand the value of the metal producing industry to the nations, 
and the importance of metal mining law as a department of 
jurisprudence; and if we consider the latter as primarily intended 
mainly to encourage the discovery of the metallic resources, 
and secondarily to govern the operations of mining, the subject 



326 INTERNATIONAL MINING LAW 

will acquire a new interest and value. That this should be its 
aspect seems to be beyond question. 

For, if the demand for the metals seems great at this time, what 
will it be fifty years hence? They have already become vital 
necessities. Note the absolute dependence of the machinery 
business and the railroads on iron, of the electrical industries on 
copper, of food preservation on tin, and the infinitude of pur- 
poses for which paint is a necessity on lead and zinc. How 
would the manufacturing industries fare to-day without the 
ferro alloys of manganese, chromium, nickel, vanadium, tungsten 
and molybdenum, and the chemical industries without the 
numerous metallic and non-metallic substances that are annually 
being raised in ever increasing quantities from the crust of the 
earth? If progress in this line of activity has been wonderful 
since 1850, what may be expected during the next 70 years, 
after wars perhaps have come to an end forever? 

The legislation that will control the mining of the future is 
therefore a subject worthy of the most careful attention and 
study. Other things being equal, that land will be a favored one 
that possesses a healthy, vigorous, and permanent mining 
industry. Permanence depends wholly upon the continuance of 
the agencies of discovery, which are active or dormant according 
to the freedom of search for hidden underground wealth allowed 
to the pioneer explorer. As the world depends mainly for its food 
on the labors of the individual farmer, so it depends for its metals 
on the efforts of the prospector. The latter, therefore, should be 
given every kind and variety of freedom in the exercise of his 
form of activity that is consistent with the maintenance of 
good order, and be relieved of all burdens that can be shown 
to be hindrances to his work. I know of no better way of 
emphasizing the importance of this point than to quote the 
following paragraphs from the article on Mining in the 11th 
edition of the Encyclopaedia Britannica, Vol. 18, page 541 : 

"It is to the public interest that deposits of mineral should not be 
permitted to remain idle and undeveloped. This has been recognized 



CONCLUSION 327 

from the earliest times, and laws have been framed in all countries for 
the encouragement of mining enterprise. 

"In many cases the State or the Ruler has sought to obtain a share 
in the profits of mining, or even to work mines for the individual profit 
of the Ruler or of the State. But in most cases it has been found better 
policy for the State to divest itself of all interest in mining property, and 
to extend all possible encouragement to those who undertake the 
development of the mineral wealth of the nation. The mining laws of 
most civilized states grant the right of free prospecting on the public 
lands, protect the rights of the discoverer of the mineral deposit during 
the period. of exploration, and provide for the acquisition of mineral 
property on favorable terms. Striking examples of the far reaching 
effects of such laws is shown in the history of the Rocky Mountain region 
and western coast of the United States, the colonization and develop- 
ment of Australia, and the development of Alaska." 



22 



INDEX 



Acquiring title, see Title, acquiring. 
Agricola, 17, 291 
Aguillon, Louis, 253 
Alaska, prospecting, 288 
America, history of mining in, 9-15 
American system of mining laws, 98- 
114 

acquiring title, 98 

extralateral rights, 99 

history, 99 

mining titles, 100 

placer and lode claims, 99 

prospecting, 102 

See also United States. 
Ancient mining laws in Germany, 
17-20 

in Spain, 21-43 
Antimony, royalties on, 29, 34 
Apex rights, aid to prospectors, 289 

modification, 316 

See also Extralateral rights. 
Arabs in Spain, 23 
Argentina, acquiring title, 55 

condition of mining industry, 
96, 97 

dredging rights, 57 

extralateral rights, 56 

hydraulic operations, 57 

mining laws, 52-58 

number of claims, 56 

prospecting, 53 
laws, 50 

size of claim, 54 

transference of claims, 57 
Arizona, mining conditions, 301 
Ashanti, mining laws, 270 



Assyrians, use of iron by, 6 
Australasian system of mining law, 
see British Australasian 
system. 
Australia, < gold discovery in, 2, 12 
history of mining, 319 
mining law in, 13 
See also South Australia, West- 
ern Australia. 
Austria, mercury mines in, 8 
Austria-Hungary, mining laws, 214 

Belgium, metallurgy of zinc in, 7 
Bessemer converter, 7 
Bohemia, mining laws, 5 
Bolivia, duties on metals, 61 

mining laws, 58-61 

prospecting in, 50, 59 

royalties, 61 

size of claim, 59 

tax on mines, 60 

tin production, 95 

tunnel rights, 60 
Brazil, condition of mining indus- 
try, 96, 97 

mining law, 61-64 

prospecting in, 62 

royalties, 64 

size of claim, 63 

transference of claims, 64 
British Australasia, discoveries of ore, 
288 

history of mining, 319 

leasehold, 304 

mineral production, 153-155, 
325 



329 



330 



INDEX 



British Australasian system, 115— 
155 

New South Wales, 118 

New Zealand, 123 

production statistics, 153-155, 
325 

prospecting, 117 

Queensland, 129 

rental for claims, 118 

South Australia, 135 

Tasmania, 139 

transference of claims, 117 

Victoria, 144 

Western Australia, 148 
British Columbia, crown grants, 163 

discoveries of ore, 288 

free miner's certificate, 162 

leases, 163 

maintenance requirements, 163 

mining laws, 162 

prospecting, 162, 243 

size of claim area, 161, 163, 244 
British Guiana, mining in, 97 

laws, 243 
British India and Burma, mining 
laws, 245 

Mysore, mining law, 276 
British North Borneo, mining laws, 

285 
British South Africa Company, 199, 

200, 203, 204 
Bronze, discovery of, 3 
Burma, mining laws, 245 

California, gold discovery in, 2, 12 

early mining laws, 99 

mining law in, 12 
Canada, discoveries of ore, 288 

history of mining, 318 

mineral production, 325 

mining law in, 15 
Canadian system of mining law, 156 

British Columbia, 162 



Canadian system of mining law, 
Dominion of Canada, 164 

leasehold, 304, 306 

New Brunswick, 165 

Newfoundland, 168 

Ontario, 172 

production statistics, 176-178 

prospecting, 157 

Quebec, 174 

staking claims, 316 
Cape Colony, base metals and min- 
erals, laws, 188 

leases, 189 

mining laws, 184 

precious metals, laws, 184 
stones, laws, 187 

prospecting, 184, 187, 188 

size of claims, 185, 186 
Cape Province, leasehold tax, 305 
Cassiterite, mining history, 3 
Cayenne, mining laws, 265 
Central America, condition of min- 
ing industry, 96 
Ceylon, mining laws, 247 
Charcoal as a fuel, 6 

iron, 6 
Chihuahua, Mexico, mining condi- 
tions, 301 
Chile, copper production, 95 

mining in, 11 
laws, 64 

prospecting in, 50, 64 

size of claim, 65 

tax on claims, 66 
China, mining laws, 249 
Cinnabar, 8 
Claims, joint location, 108 

lode, 104 

mill site, 106 

placer, 106 

recording, in U. S., 105 

registration, in New South 
Wales, 120 



INDEX 



331 



Claims, taxes in U. S., 108 

tunnel site, 107 

See also Classification of mineral 
claims; size of claims; title, 
acquiring. 
Classification of mineral claims, in 
France, 215 

French Guiana, 265 

Guatemala, 73 

Haiti, 271 

Natal, 189 

New Zealand, 126 

Nigeria, 279 

Peru, 83 

South Australia, 135 

Spain, 231 

Texas, 109 

Turkey, 237 

United States, 104 

Uruguay, 86 

Venezuela, 89 

Victoria, 144 

Western Australia, 148 
Clausthal, lead veins at, 4 
Coal mining, history, 2 

in Texas, 110 
Codes in Spain, 23, 24 
Coke, use in iron casting, 6 
Colombia, acquiring title, 67 

condition of mining industry, 96 

mining laws in, 66-68 

prospecting, 66 

size of claims, 66 
Company operations, in Colombia, 
66 

Guatemala, 77 

Honduras and Nicaragua, 81 

Latin America, 51 

Venezuela, 91 

Western Australia, 149 
Congo Free State, mining laws, 251- 

254 
Conveyancing rights, in Spain, 32 



Copper, in Chile, 11 

mining, 4 
history, 5 
Copper production in British Aus- 
tralasia, 153-155 

Canada, 176-178 

Europe, 242 

Latin America, 94 

South Africa, 211 

United States, 111-113, 318 

of the World, 325 
Copper, royalties on, 29, 33 
Cornwall, tin mining in, 7 
Costa Rica, acquiring title, 69 

mining laws, 68 

prospecting, 68 

royalties, 69 

size of claims, 68 
Crown grants, in British Columbia, 

163 
Cuba, acquiring title, 71 

mining laws, 69 

prospecting, 71 

size of claims, 71 

tax on mines, 72 
Cyprus, mining laws, 257 

Defects of American law, 313 
Denouncement, definition, 36 
Discovery of ore a prerequisite to 
location, 300-303 

relation to prospecting, 288 
Dominion of Canada, mining laws, 
164 

prospecting, 164 

size of claims, 165 
Dredging rights, in Argentina, 57 
Dutch Guiana, mining in, 97 

law, 257 
Duties on metals, see Royalties. 

Ecuador, condition of mining indus- 
try, 96, 97 



332 



INDEX 



Ecuador, mining laws, 72 
Egypt, leases, 262 

licenses, 261 

mining law, 260 

use of iron in, 6 
Electrolysis, 7 
Electroplating, 7 
England, extralateral doctrine, 293 

iron and steel industry in, 7 

patent for coating iron with 
zinc, 7 

See also Great Britain. 
Europe, mineral production, 241, 

242, 325 
European systems of mining law, 
212-242 

Austria-Hungary, 214 

France, 215 

Germany, 219 

Great Britain, 221 

Italy, 222 

Norway, 225 

Portugal, 226 

prospecting, 213 

results, 241 

Russia, 230 

Serbia, 240 

Sicily, 225 

Spain, 231 

Sweden, 236 

Turkey, 236 

underground ownership, 212 
Exploration, beginning of, 10 
Extralateral rights, 19, 291-299 

aid to prospectors, 289 

in Argentina, 56 

England, 293 

Germany, 291, 292 

Latin America, 51 

merits, 297 

modification in United States, 
316- 

origin, 291 



Extralateral rights, Rhodesia, 182, 
298 
size of claim unit, 291 
Spain, 293 
United States, 99 

Faraday, 7 

Federal mining law in United States, 

103, 287 
Federated Malay States, mining 

law, 263 
Fee simple title vs. leaseholds, 304- 

306 
Finland, mining laws, 230 
France, classes of mineral sub- 
stances, 215 
metallurgy of zinc in, 7 
mining laws, 215 
prospecting, 216 
royalties, 218 
surface and underground rights, 

217 
use of iron in, 6 
Free miner's certificate, in British 
Columbia, 162 
prospecting vs. licensed, 307- 
310 
Freiburg, silver mines, 4 
French Guiana, mining in, 97 
laws, 265 
staking claims, 316 

Galvani, 7 
Gamboa, 31, 32 
Gas, in Texas, 109 
German mining law, acquiring title 
by, 18 

ancient, 17-20, 32 

extralateral rights, 19, 291, 292 

meer, unit claim, 17 

prospecting, 219, 220 

Prussian law, 219 

Saxon law, 220 



INDEX 



333 



German mining law, tunnel rights, 20 
Germans, in Spain, 34 
Germany, iron castings made in, 6 
metallurgy of zinc in, 7 
mining in, 5 
Gold, discoveries, 318 

discovery in New South Wales, 

115 
mining, history, 2 

in the Urals, 5 
production in British Australia, 
153-155 
Canada, 176-178 
Europe, 242 
Latin America, 94 
South Africa, 211 
United States, 111-113, 318 
of the world, 325 
reward for discovery, 131 
royalties on, 29, 33, 34, 37, 43 
Gold Coast, mining laws, 270 
Great Britain, mining laws, 221 
Greece, early mining in, 2 
lead mining in, 8 
use of iron in, 6 
Guatemala, acquiring title, 75 
mining laws, 73 
prospecting, 75 
royalties and tax, 77 
size of claim, 75 
Haiti, mining laws, 271 
Hematite, iron reduced from, 6 
History of mining and mining law, 

1-16 
Holland, electroplating in, 7 
Honduras, acquiring title, 79 
mining laws, 78 
prospecting, 78 
size of claims, 79, 81 
tax, 80 
Hoover, H. A., 17, 292 
Hydraulic operations, in Argentina, 
57 



Iberian peninsula, mining in, 3 
Idria, quicksilver mines, 4 
Iglau, silver veins at, 5 
India, mining laws, 245 

tin mining in, 3 
Inquisition, effect on mining indus- 
try, 11 
Iron, Bessemer converter invented, 7 

charcoal iron, 6 

discovery as a metal, 5 

history of use, 6 
Italy, mining laws, 222 

Japan, mining laws, 273 
Joachimsthal mint, 5 
Joint location, 106 

Katanga Mines Co., 254 
Kuttenberg silver mines, 4 

Land tenure law, Roman, 47 
Latin America, continuation of an- 
cient Spanish laws, 32 

discoveries of ore, 288 

mining in, 11 

old Spanish mining laws, 39 

production statistics, 94, 325 
Latin-American system of mining 
. law, 11, 47 

Argentina, 52 

Bolivia, 58 

Brazil, 61 

Chile, 64 

Columbia and Panama, 66 

company operations, 51 

Costa Rica, 68 

Cuba, 69 

Ecuador, 72 

extralateral rights, 51 

form of title, 50 

Guatemala, 73 

Honduras and Nicaragua, 78 

land tenure law, 48 



334 



INDEX 



Latin-American system of mining 


Licenses, Natal, 190, 192 


law, leasehold, 304 




New Brunswick, 166 


Mexico, 81 




Nigeria, 280 


Peru, 83 




Nova Scotia, 170 


prospecting, 49 




Ontario, 172 


results, 94 




Quebec, 175 


Uruguay, 86 




Siam, 283 


Venezuela, 89 




South Africay 181 


Lead, mining, 4, 7 




Transvaal, 209 


history, 7 




See also Miner's right. 


production in British Australa- 


Liebig, 8 


sia, 153-155 




Lignite mining in Texas, 110 


Canada, 176-178 




Location of claim dependent on 


Europe, 242 




discovery of ore, 300 


Latin America, 94 




Lode claims, 104 


United States, 111-113 




in California, 99 


of the world, 325 






royalties on, 29, 33 




Malayan peninsula, tin deposits in, 


Leasehold vs. fee simple title, 


304- 


4 


306 




Manlove, Edward, 293 


Leases, in British Columbia, 163 


Meer, in German laws, 17 


Cape Colony, 189 




Mercury, mining and use of, 8 


Egypt, 262 




production in Europe, 242 


Federated Malay States, 265 


United States, 111, 113 


Germany, 17 




of the world, 325 


Mysore, 278 




Metals, statistics of production, see 


New Brunswick, 167 




Statistics. 


New South Wales, 121 




Meteorites, iron reduced from, 5 


Newfoundland, 169 




Mexico, acquiring title, 82, 83 


Nigeria, 281 




company operations, 51 


Nova Scotia, 171 




gold production, 96 


Queensland, 133 




mining conditions, 301 


Siam, 284 




mining in, 11 


South Australia, 138 




laws, 44^46, 81 


Tasmania, 142 




number of claims, 46 


Victoria, 147 




production of argentiferous 


Western Australia, 151 




ores, 95 


Licensed prospecting vs. free, 


307- 


prospecting, 33, 45, 50, 82 


310 




results of mining laws, 96, 97 


Licenses, in Congo Free State, 


254 


size of claim, 46, 82 


Egypt, 261 




statistics of production of 


Federated Malay States, 264 


metals, 94, 97 


Mysore, 276 




success of laws, 301 



INDEX 



335 



Mexico, taxes, 83 

Mill site, in United States, 106 

Mineral production of the world, 325 

See aiso Statistics of production. 

prospecting warrant, 125 
Miner's right, in New South Wales, 
118 

New Zealand, 123 

South Australia, 135 

Tasmania, 117, 139, 140 

Victoria, 144 

Western Australia, 148 

See also Licenses, mineral pros- 
pecting warrant. 
Mining, history of, 1-16, 318-322 
Mining laws, American system, 98- 
114 

ancient German, 17-20 
Spanish, 21-43 

Argentina, 52-58 

Ashanti, 270 

Australia, 13 

Austria-Hungary, 214 

Bohemian code, 5 

Bolivia, 58-61 

Brazil, 61 

British Australasian system, 
115-155 

British Columbia, 162 

British Guiana, 243 

British India and Burma, 245 

British North Borneo, 285 

California, 13 

Canada, 15, 164 

Canadian system, 156 

Cape Colony, 184 

Ceylon, 247 

Chile, 64 

China, 249 

Colombia, 66-68 

conclusions, 323-327 

Congo Free State, 251 

Costa Rica, 68 



Mining laws, Cuba, 69 
Cyprus, 257 
discovery of ore and locating 

claim, 300 
Dutch Guiana, 257 
earliest code, in Bohemia, 5 
Ecuador, 72 
Egypt, 260 

European systems, 212-242 
extralateral rights, 19, 291-299 
Federated Malay States, 263 
France, 215 
French Guiana, 265 
Germany, 219 
Gold Coast, 270 
Great Britain, 221 
Guatemala, 73 
Haiti, 271 
history of, 1-16 
Honduras, 78 
Italy, 222 
Japan, 273 
Latin America, 11 
Mexico, 81 

Mysore, British India, 276 
Natal, 189 
New Brunswick, 165 
New South Wales, 115, 118 
New Zealand, 123 
Newfoundland, 168 
Nicaragua, 78 
Nigeria, 279 
Norway, 225 
Nova Scotia, 170 
Ontario, 172 
Orangia, 193 
Panama, 66-68 
Peru, 83 
Portugal, 226 
prospecting, 307-310 
Quebec, 174 
Queensland, 129 
Russia, 5, 230 



336 



INDEX 



Mining laws, Serbia, 240 

Siam, 283 

Sicily, 225 

South African system, 15, 179- 
211 

South Australia, 135 

Southern Rhodesia, 199 

Spain, 231 

Sweden, 236 

Tasmania, 139 

Transvaal, 206 

Turkey, 236 

Uruguay, 86 

Venezuela, 89 

Victoria, 144 

Western Australia, 148 
Mining license, see Licenses, miner's 
right. 

properties, see Classification of 
mineral claims. 
Mirrors, coating with mercury, 8 
Moors in Spain, 22 
Mysore (British India), mining 
laws, 276 

Natal, classes of claims, 189 

leasehold tax, 305 

licenses, 190, 192 

mining claims, 192 
laws, 189 

prospecting, 190 

surveying fees, 192 
New Brunswick, leaseholds, 167 

licenses, 166 

mining laws, 165 

prospecting, 159, 165 

royalties, 168 

size of claims, 166 
New Mexico, mining conditions, 301 
New South Wales, classes and sizes 
of claims, 119 

leases, 121 

miner's right, 118 



New South Wales mining laws, 115, 
118-123 

prospecting, 120 

royalties, 123 

surveys of claims, 120 

See also British Australasian 
system. 
New Zealand, classification of 
claims, 126 

history of mining, 320 

miner's right, 123 

mining laws, 123 

royalties, 128 
Newfoundland, mining laws, 168 
Nicaragua, acquiring title, 79 

mining laws in, 78 

prospecting, 78 

size of claims, 81 

tax, 80 
Nickel ore, discovery, 318 

production in Canada, 176-178 
of the world, 325 
Nigeria, mining laws, 279 
Norway, mining laws, 225 

silver mines, 5 
Nova Scotia, leaseholds, 171 

licenses, 170 

mining laws, 170 

prospecting, 158, 170 

royalties, 172 
Number of claims allowed, see Size 
of claims. 

Oil, in Texas, 109 
Ontario, licenses, 172 

mining laws, 172 

patents, 174 

prospecting, 174 

size of claims, 172 
Orangia, base metals and minerals, 
198 

leasehold, 305 

mining laws, 193 



INDEX 



337 



Orangia, precious metals and pre- 
cious stones, 194 
prospecting. 194 

Panama, mining law in, 66-68 
Paraguay, condition of mining 

industry, 96 
Patents of claims, in Ontario, 174 

United States, 107 
Patented claims, costs, 315 
Peru, acquiring title, 85 

classification of minerals, 83 

mining laws, 83 

prospecting in, 50, 84 

royalties, 86 

size of claim, 84 

taxes, 84 
Petroleum, in Texas, 109 
Pettijean, 8 
Phoenicians, in Spain, 22 

mining by, 3 
Placer claims, 103 

areas in Spain, 39 

California, 99 

United States, 314 
Platinum production in Europe, 
242 

of the world, 325 
Poland, mining laws, 230 
Portugal, control of mining in 
America by, 11 

land tenure law, 48 

mining laws, 226 

prospecting, 227 

taxes, 229 
Possessory rights in Latin America, 
50 
Spain, 32 

title, 107 
Precious stone mining, laws, 184 

in Orangia, 194 
Private land, mining on, 134 

in Tasmania, 143 



Production statistics, in British 
Australasia, 153-155 

Canada, 176-178 

Europe, 241, 242 

Latin America, 94, 325 

South Africa, 210, 211 

Western United States, 111-113 

of the world, 325 
Prospecting areas, 311, 312. See 
also Size of claims. 

beginning of, 10 

free vs. licensed, 307-310 
Prospecting, in America, 102, 104 

Argentina, 50, 53 

Austria-Hungary, 214 

Bolivia, 50, 59 

Brazil, 62 

British Australasia, 117 

British Columbia, 162 

British Guiana, 243 

British India and Burma, 245 

Canada, 157, 164 

Cape Colony, 184, 187, 188 

Ceylon, 248 

Chile, 50, 64 

China, 250 

Colombia and Panama, 66 

Congo Free State, 253, 254 

Costa Rica, 68 

Cuba, 71 

Dominion of Canada, 157, 164 

Dutch Guiana, 257 

Egypt, 260 

Europe, 213 

Federated Malay States, 264 

France, 216 

French Guiana, 265 

Germany, 219, 220 

Gold Coast, 270 

Guatemala, 75 

Haiti, 272 

Honduras and Nicaragua, 78 

Italy, 222-224 



338 



INDEX 



Prospecting, Japan, 273 

Latin America, 49 

Mexico, 33, 45, 50, 82 

Mysore, 277 

Natal, 190 

New Brunswick, 159, 165 

New South Wales, 116, 120 

Newfoundland, 168 

Nigeria, 279 

Norway, 225 

Nova Scotia, 158, 170 

Ontario, 174 

Orangia, 194 

Peru, 50, 84 

Portugal, 227 

Quebec, 159, 175 

Russia, 230 

Serbia, 240 

Siam, 283 

South Africa, 181, 182 

Southern Rhodesia, 200, 205 

Spain, 34, 232 

Sweden, 236 

Transvaal, 207 

Turkey, 237 

United States, 102, 104, 108 

Uruguay, 86 

Venezuela, 93 
Prospecting, license, see Licenses, 
mineral prospecting war- 
rant, miner's right. 

Spanish law, 38 
Prospectors, 286 

absence outside of United States, 
287 . 

apex and extralateral rights, 289 

necessary inducements, 288 
Prussian law, 219 
Przibram, silver mines at, 4 

Quebec, licenses, 175 
mining law, 174 
prospecting, 159, 175 



Quebec, royalties, 175 
Queensland, leases, 133 
miner's right, 129 
mining law, 129 

on private land, 134 
reward for gold discovery, 131 
royalties, 134 

size of prospecting areas, 131 
claims, 132, 133 
Quicksilver, claimed by Spanish 
government, 40, 42 
mines, 4 
See also Mercury. 

Reduction of ores, in Spain, 30, 37 
Registration of "claims, see Title, 

acquiring. 
Rental on claims, see Taxes. 
Reward for gold discovery, 131 
Rhodesia, extralateral rights, 182, 
298 

gold production, 183 

mining law in, 15 

southern, mining laws, 199 
Roman land tenure law, 47 
Romans, in Spain, 22 

mercury mining by, 8 

mining in Sudetic Alps, 4 

use of lead by, 7 
Royalties, in Bolivia, 61 

Brazil, 64 

British India and Burma, 246 

Ceylon, 249 

China, 250 

Congo Free State, 253 

Costa Rica, 69 

Cyprus, 257 

Egypt, 262, 263 

France, 218 

Gold Coast, 271 

Guatemala, 77 

Mysore, 276, 277, 278 

New Brunswick, 168 



INDEX 



339 



Royalties, New South Wales, 123 

New Zealand, 128 

Nigeria, 281, 282 

Nova Scotia, 172 

Peru, 86 

Quebec, 175 

Queensland, 134 

Siam, 284 

Southern Rhodesia, 206 

Spain, 28, 30, 33, 34, 37, 236 

Spanish America, 43 

Texas, 110, 111 

Transvaal, 210 

Turkey, 238 

Western Australia, 152 
Russia, mining laws, 5, 230 

Salt mines at Wlelitzka, 4 
Saltpeter mines in Chile, 11 
Saxon law, in Germany, 220 
Serbia, mining laws, 240 
Siam, mining laws, 283 
Sicily, mining laws, 225 
Silver-lead veins, 4 

lead-zinc ore, mining, 3 

mining, discovery of mines, 4, 5 
Norwegian mines, 5 
in Sudetic Alps, 4 
Silver production in British Australa- 
sia, 153-155 

Canada, 176-178 

Europe, 242 

Latin America, 94 

South Africa, 211 

United States, 111-113, 318 

of the world, 325 
Silver, royalties, 29, 30, 33, 34 

in Spain, 37 

in Spanish America, 43 
Size of claim, in Argentina, 54 

Bolivia, 59 

Brazil, 63 

British Columbia, 244 



Size of claim, Cape Colony, 185, 186 

Chile, 65 

Colombia and Panama, 66 

Cuba, 71 

Dominion of Canada, 165 

Honduras and Nicaragua, 79, 81 

Mexicp, 46, 82 

New Brunswick, 166 

New South Wales, 119 

Norway, 226 

Nova Scotia, 171 

Ontario, 172 

Peru, 84 

Porto Rico, 68 

Queensland, 132, 133 

South Australia, 136 

Southern Rhodesia, 202, 203 

Spain, 28, 31, 35, 38, 232 

Spanish America, 42 

Tasmania, 141 

Texas, 110 

Transvaal, 207, 209 

Uruguay, 87 

Venezuela, 91 

Western Australia, 149 
Sonora, Mexico, mining conditions, 

301 
South Africa, mineral production, 
325 

mining law in, 15 
South African system of mining 
law, 179-211 

Cape Colony, 184 

labor conditions, 179 

leasehold, 304 

licenses, 181 

mining conditions, 183 

Natal, 189 

Orangia, 193 

production statistics, 210, 211 

prospecting, 181, 182 

Southern Rhodi 
Transvaal, 206 



340 



INDEX 



South Australia, classification of 
claims, 135 

leases, 138 

miner's right, 135 

mining laws, 135 

size of claims, 136 
Southern Rhodesia, British South 
Africa Company, 199, 200, 
203, 204 

mining laws, 199 

prospecting, 200, 205 

residence sites, etc., 205 

royalties, 206 

size of claims, 202, 203 

taxes, 204 
Sovereign rights, 1 
Spain, ancient mining laws, 21-43 

control of mining in America 
by, 11 

history of mining, 21-43 

mercury mining in, 8 
Spanish America, digest of Spanish 
law, 41 

old mining laws, 39 

royalties, 43 

size of claim, 42 
Spanish mining laws, 21-43, 231 

abstract of law of 1849, 37 

abstracts, 25 

books on mining laws, 25 

classes of mineral substances, 
231 

code of Alaric, 23 
Castile, 23 

codes, 23, 24 

continuation in Spanish Amer- 
ica, 32 

decrees in Spanish America, 39 

denouncement, definition, 37 

digest of law of 1559, 28 

extralateral rights, 293 

Kings' decrees, 25 

land tenure law, 48 



Spanish mining laws, number of 
claims allowed, 35, 38 
possessory and conveyancing 

rights, 32 
prospecting, 38, 232 
reduction of ore, 37 
registry of claims, 34 
royalties, 28, 30, 33, 34, 37, 236 
Siete Partidas, 24 
size of claims, 28-31, 35, 38, 

232 
tunnel rights, 31 
Staking claims, in United States, 316 
Statistics of production in British 
Australasia, 153-155 
Canada, 176-178 
Europe, 241, 242 ■ 
Latin America, 94, 325 
South Africa, 210, 211 
Western United States, 111-113 
of the world, 325 
Sudetic Alps, mining in, 4, 17 
Surface and underground rights, in 
Bolivia, 58 
British Isles, 314 
Cuba, 70 
Europe, 212 
France, 217 
Peru, 84 

United States, 108, 314 
Uruguay, 88 
Venezuela, 90 
Surinam, mining law, 257 
Surveying, in Natal, 192 
New South Wales, 120 
Western Australia, 150 
Sweden, mining laws, 236 

Tasmania, history of mining, 321 
leases, 142 
miner's right, 140 
mining laws, 139 
on private land, 143 



INDEX 



341 



Tasmania, prospecting license, 139 

size of claim, 141 
Taxes in Bolivia, 60 
Chile, 66 
Cuba, 72 
Guatemala, 77 

Honduras and Nicaragua, 80 
Mexico, 83 
Peru, 84. 
Portugal, 229 
Southern Rhodesia, 204 
United States, 108 
Uruguay, 89 
Venezeula, 92 
Tenements, 119 

Texas, classification of minerals, 109 
coal and lignite mining, 110 
discoveries of ore, 288 
mining laws, 109 
results of laws, 111 
royalties, 110, 111 
size of claim, 110 
Tin mining, 7 

history, 3 
in Cornwall, 7 
production in British Australa- 
sia, 153-155 
Europe, 242 
Latin America, 94 
of the world, 325 
Title acquiring by German law, 18 
in Argentina, 55 
Bolivia, 59 

Colombia and Panama, 67 
Costa Rica, 69 
Cuba, 71 
Guatemala, 75 
Honduras and Nicaragua, 79 
Mexico, 82, 83 
Peru, 85 

United States, 98, 100 
Uruguay, 87 
Venezuela, 93 



Title, fee simple, vs. leaseholds, 
304-306 
form of, in Latin America, 50 
Transference of claims, in Argen- 
tina, 57 
Brazil, 64 

British Australasia, 117 
Transvaal, certificate of rights, 208 
discovery of gold, 298 
gold production, 183 
leasehold, 305 
licenses, 209 
mining law in, 15, 206 
< prospecting, 207 
royalties, 210 
size of claim, 207, 209 
Tunnel rights, 20 

in Bolivia, 60 
in Spain, 31 
in United States, 316 
site, in United States, 107 
Turkey, law in Cyprus, 257 
mining laws, 236 
royalties, 238 

Underground rights, see Surface 

and underground rights. 
Unit mining claim, see Size of claim. 
United States, classes of claims, 104 
cost of patents, 315 
defects of mining law, 313 
Federal mining law, 103, 287 
history of mining, 318 
leasehold, 306 
lode claim, 104 
mill site, 106 
mineral production, 325 
mining industry commercial- 
ized, 5 
laws, 98-114 

see also American system, 
patent on claims, 107 
placer claim, 106, 314 



342 



INDEX 



United States, prospecting, 104, 108 

prospectors in, 287 

staking claims, 316 

state laws, 108, 109, 315 

statistics of production, 111, 113 

surface rights, 108 

taxes on claims, 108 

tunnel rights, 316 
site, 107 

underground rights, 314 
Uruguay, acquiring title, 87 

classification of minerals, 86 

condition of mining industry, 96 

mining laws, 86 

prospecting, 86 

size of claim, 87 

surface and underground rights, 
88 

taxes, 89 

Venezuela, acquiring title, 93 
classification of minerals, 89 
condition of mining industry, 96 
mining laws, 89 
prospecting, 93 
size of claim, 91 
surface and underground rights, 

90 
taxes, 92 



Victoria, classification of claims, 144 

leases, 147 

miner's right, 144 

mining laws, 144 
Visigoths in Spain, 22 
Volta, 7 

Western Australia, classification of 
claims, 148 

leases, 151 

miner's right, 148 

mining laws, 148 

royalties, 152 

size of claims, 149 

survey of claims, 150 
Wielitzka, salt mines at, 4 

Xavier de Gamboa, Don F., 24 

Yukon Territory, discoveries lack- 
ing, 288 

Zinc, metallurgy of, 7 

production, in British Australa- 
sia, 153-155 
Canada, 176-178 
Europe, 242 
Latin America, 94 
United States, 111-113 
of the world, 325 



477 93 



